Makuto v. State

M was convicted of rape. Under s 142(2) of the Penal Code (as amended by the Penal Code (Amendment) Act 1998 (No 5 of 1998)) he was required to undergo an HIV test before being sentenced. M tested positive. Under s 142(4)(a) a person convicted of rape who proves to have HIV is subject to a minimum of 15 years imprisonment if he was unaware of his status at the time of the offence and under s 142(4)(b) a minimum of 20 years if he was aware. This compared to a minimum sentence for rape by a non-HIV positive person of 10 years. M, sentenced to 16 years imprisonment and 2 strokes of the light cane, appealed on the grounds, inter alia, that it was discriminatory and unjust contrary to s 15 of the Constitution to provide for heavier penalties on the basis of an offender’s HIV status, and further that s 142(4) was unjust and unfair in presuming that an offender who tested HIV positive after conviction must have transmitted the virus to the victim.

[Adapted from INTERIGHTS summary]

In dismissing the appeal against conviction, but allowing the appeal against sentence, the Court held that:

• Although section 15 made no reference to discrimination against a group or class of person on the grounds of health or physical disability the framers of the Constitution did not intend the s 15 categories to be exhaustive and the list can be extended (A-G v Dow [1992] LRC (Const) 623 (Botswana CA) applied). Therefore provided an identifiable group or class of persons suffered discrimination as such a group or class for no other reason other than the fact of their membership in said group entitles them to challenge the relevant law as unconstitutional. On these grounds different treatment in the sentencing process for the same crimes on the sole basis of a person’s HIV status could amount to discrimination.
• However, section 15(4)(e) recognizes that freedom from discrimination can be restricted where it was reasonably justifiable to do so in a democratic society. Whilst any exception should be narrowly construed s 142(4)(b), in imposing an enhanced sentence for offenders who knew they were HIV positive at the time of committing the offence, was reasonably justified on the grounds of both attempting to halt the spread of HIV and acting as a deterrent.
• Any law enacted for the purpose of providing an enhanced punishment for an offence which takes into account circumstances occurring after and unconnected with the commission of the offense cannot be considered valid either in terms of punishment or deterrence. In this context s.142(4) must be interpreted narrowly limiting the enhanced penalty only to persons having HIV at the time of the act of rape. A broader interpretation would suggest that Parliament had intended to impose such a sentence on persons not for the rape committed, but simply because they had HIV. This would offend the Constitution as being too broad and discriminatory, and exceed any measure that was reasonably necessary for combating the threat to the nation’s health. Therefore, unless a court was satisfied that the convicted person was HIV positive, though unaware of it at the time of committing the offense, it has no right to punish him under s 142(4)(a) (State v Ontshabetse Lejony Cr App 23/2000, unreported (Botswana HC) applied).
• Since M, in accordance with s.143(3), was only tested for HIV after conviction, it cannot be established whether he was HIV positive at the time the offense was committed or had contracted it during or after the rape. As such, the precondition for the imposition of the minimum sentence of 15 years was not established. Accordingly M's original sentence was set aside and replaced by the minimum sentence for rape of 10 years imprisonment.

[Adapted from INTERIGHTS summary, with permission]

"Freedom from discrimination only on account of being a member of an identifiable  and recognised group or class is guaranteed by the Constitution. That freedom has  to be liberally interpreted. Indeed, the fact of including in the groups of those  likely to be affected by discrimination persons afflicted by disease or disability is a  result of such liberal interpretation. But that freedom is not absolute. It is curtailed in section 15(4)(e) by the exception which recognises the power of Parliament to  restrict this freedom from discrimination by the enactment of a law, which, “having  regard to its nature and to special circumstances pertaining to those persons or to  persons of any other such description, is reasonably justifiable in a democratic society" (page 8)

"As provisions of that enactment are challenged on the ground that they abridge the freedom from discrimination of persons who after conviction are found to test HIV positive, the issues for consideration are, in the first place, whether the provisions are discriminatory; and if so, whether such provisions can or cannot be permitted to prevail on the ground of being laws which, having regard to their nature and to
special circumstances pertaining to persons with the HIV syndrome, are reasonably justifiable in a democratic society." (page 8-9)

" Having accepted that the law is discriminatory, we come to the next question, whether the law enacted is or is not reasonably justifiable in a democratic society. Rape by itself is a very serious offence with such traumatic consequences for the victim that in the effort to combat it, Parliament has before the disputed amendment made a change to the punishment of those found guilty of it. As far back as 1982, the Penal Code (Amendment) Act in section 1 made corporal punishment compulsory for the offences of rape and attempted rape. That in itself gave an indication of the seriousness with which Parliament then regarded the incidence of the offences. To add to the victim's trauma of rape the anxiety of possible contagion of AIDS and the actual contraction of the disease must be a tragedy beyond endurance. In the face of the gravity of the crisis which has overtaken the people, Parliament it is clear, formed the view that it would be imprudent and irresponsible if it did not act; and that one method of meeting the crisis that it chose was to provide enhanced minimum sentences for persons who committed rape and were found to be HIV positive." (page 9)

"A law enacted for the purpose of providing an enhanced punishment for an offence which takes into account circumstances which occur after and which are unconnected with the commission of that offence cannot be considered a law for the punishment of that offence. Neither can it be considered to deter people from the commission of that offence. It is neither just nor necessary for the prevention of the offence because it bears no relationship with the crime which the law seeks to punish. If I were to accede to the argument on this point by counsel for the respondent, namely, that it matters not when the HIV syndrome was contracted, and that once the convicted person is found after conviction to have HIV, he was liable to the enhanced punishment imposed by the amendment, I would have to hold further that such legislation offends against the constitutional freedom from discrimination conferred by section 15(1). It offends the Constitution because it is
too broad and discriminatory; and it exceeds any measure which can be described as reasonably necessary for the legislature to take in combating the threat to the nation's health, serious though it be. And in so far as it exceeds what is reasonably necessary to meet the situation posed, the discrimination cannot be justified under section 15(4)." (page 15)

"Section 142(4)(a) merely says that, “Any person who is convicted [of rape, et cetera] and whose test for the HIV … is positive shall be sentenced to a minimum term of 15 years’ imprisonment.” The section does not expressly deal with the time when HIV positive status was acquired. That has given the respondent the opportunity to argue that it does not matter if the status was acquired after the rape. Having regard to the fact that the punishment was decreed for the offence of rape, it would be extraordinary that a reading of the provision should be adopted which covers HIV status acquired in the course of the rape from the victim or after the offence for which the punishment was prescribed. The status must, to make sense, be related to, and affecting the offender when he commits the rape; it would, therefore have to be in existence at the time of the offence. Otherwise it would appear as if Parliament intended to impose such a severe minimum sentence
on persons not for the rape committed, but simply because they had HIV. That cannot be right and cannot be the intention of Parliament. In my view, the broad interpretation sought by the respondent is unacceptable. It is only by the interpretation which limits the enhanced penalty to the person having the HIV syndrome at the time of the act of rape that the provision can be justified as within the constitutional limits of Parliament to enact." (page 16)