Makuto (“Appellant”) was convicted of rape. Pursuant to Section 142(2) of the Penal Code of Botswana, he was required to undergo a mandatory HIV test before being sentenced. He tested positive but it was not clear that he was aware of his HIV positive status prior to this test, including at the time of the rape. Under Section 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 Section 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. Appellant was sentenced to 16 years imprisonment and 2 strokes of the light cane. He appealed on the grounds, inter alia, that it was discriminatory and contrary to Section 15 of the Constitution to provide for heavier penalties on the basis of an offender’s HIV status, and further that Section 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. He alleged that mandating a harsher sentence on the basis of a person’s HIV status is discriminatory on the ground of disability, and thus unconstitutional. Section 15 of the Constitution of Botswana prohibits discrimination by a public authority.
The Court examined the following issues: (1) whether the consideration of the HIV status of a person convicted of rape as an aggravating circumstance in sentencing violates Section 15 of the Constitution and (2) whether the presumption that an HIV-positive person convicted of rape has infected the victim is unjust.
The Court noted that Section 15 of the Constitution prohibits discrimination on the grounds of “race, tribe, place of origin, political opinions, colour or creed.” It does not speciﬁcally enumerate HIV status as a prohibited ground of discrimination. However, the framers of the Constitution did not intend the listed grounds to be exhaustive. The Court subsequently determined that discrimination based on HIV status falls within the scope of the Section 15. Therefore, the imposition of a harsher penalty because of an offender’s HIV-positive status amounts to discrimination. Section 15(4)(e) of the Constitution allows for justiﬁable limitations on a person’s right to nondiscrimination. However, the Court found that the heavier punishment imposed on HIV-positive offenders was justiﬁed. Section 142(2)(b) is intended to deter HIV-positive people from committing rape, and to limit the spread of the disease.
The Court held that the limitation on an offender’s right to nondiscrimination is justiﬁed only when the offender knew that he was HIV positive when he committed the rape. Section 142(2) should thus apply only where the Court is satisﬁed that the offender was HIV positive at the time of the rape, and that he knew his health status. The Court determined that Appellant was tested only after his conviction. Consequently, the Court was not satisﬁed that Appellant was or knew he was HIV positive when he committed the crime.
The Court held that the HIV-positive status of a person convicted of rape does not constitute an aggravating circumstance in assessing the length of a sentence.
The Court concluded that the discriminatory treatment under Section 142(2) does not violate Section 15 of the Constitution, provided the penal provision is applied in a manner that achieves its legislative objectives, namely to deter HIV-positive persons from committing rape, and to limit the spread of the disease. In the present case, the Court was unable to determine whether the offender was or knew he was HIV positive at the time he committed the rape. Consequently, the imposition of a harsher penalty is not justiﬁed, as it would not serve the objectives of the penal provision. The state cannot regard the offender’s present HIV status as an aggravating circumstance in sentencing, as mandated by Section 142(2). The Court replaced Appellant’s 16 year sentence with a 10-year sentence.