Canada orders deportation of Zim musician because he failed to disclose HIV status

By Adrian Humphreys

Charles Kokanai Mzite’s life has been one of shifting fortunes, from international touring with an acclaimed African musical troupe, even performing for Oprah Winfrey, to fleeing political repression as a refugee to Canada; from the sanctuary of Vancouver’s vibrant artistic community to a B.C. prison.

And now it comes full circle, with Canada ordering Mzite deported back to Zimbabwe, denounced as a danger to the public of Canada for having sex without informing his female partners he had HIV.

In Zimbabwe, he joined an acclaimed drumming and dancing troupe famed for its colourful presentation of traditional African music. The group toured the world, performing on four continents.

Along with fame, it brought him love. In 1993, he married a daughter of the troupe’s patriarch. During their marriage, as for many in his AIDS-ravaged country at the time, both partners contracted HIV. By 1995, he had tested positive; his wife died in 2000, likely of HIV/AIDS, he later said.

Meantime, his political comfort at home had also shifted. He had shunned the ruling party and refused to attend its events. His high profile in the country made the snub noticeable to those in power causing him and his family grief, he said.

He met a Canadian woman in Zimbabwe and she invited him to Canada. He arrived on a visitor’s visa in 2001 and was granted refugee protection in 2002. None of that required him to submit to an HIV test, as it now does.

Settling in Victoria, Mzite met up with other musicians who showed him how to busk on the streets. He joined a local marimba band called Jambanja and their energetic sound attracted attention beyond coin-tossing passersby.

In 2007, Mzite and the band were flown on a private jet to perform at a private island party for Ms. Winfrey — the TV celebrity even played along on a gourd rattle during part of the gig.

His warm smile, talent and energy made him attractive to women and he easily struck up intimate relationships. He remarried in Canada to a woman he met at the airport the day he arrived.

There were growing problems, however.

He had applied for permanent residence status in Canada, which required medical information. He declined to complete the medical portion of the immigration process and his application was denied.

Meanwhile, Mzite’s relationships were damaged by rumours in the community that he was HIV-positive. He assured at least four sex partners he did not have HIV, court later heard. To at least one, he used as his most convincing evidence that he would never have been allowed into Canada if he had HIV.

“I truly believed him,” one of the women, who cannot be identified, testified in court in 2009.

When one of his former partners in Canada contracted HIV, she went to the police. In 2007, the same year he performed for Ms. Winfrey, he tearfully admitted to investigators that he had known since 1995 he was HIV-positive.

He had first found out when his Zimbabwean troupe were scheduled to tour China, which required visitors to pass an HIV test. He failed and stayed home.

“This is not about revenge or getting him put away. The only reason I’m here is that women and children just keep getting hurt,” that former partner told court at his trial.

He was found guilty of four counts of aggravated sexual assault in 2009 and sentenced to 10 years in prison, minus time already served. The sentencing judge chastised him for abusing the women’s trust, deceiving them and lacking empathy for them.

In 2011, the Parole Board of Canada refused his parole request. Last year, pending his parole, Citizenship and Immigration Canada determined Mzite to represent a danger to the public in Canada and ordered him deported upon his release.

Letters praising him as an asset to Canada because of his cultural talent supported Mzite’s request to stay and he appealed the deportation to the Federal Court of Canada. In a new decision, the government’s decision has been upheld.

“The facts of this case speak for themselves. The applicant had a private relationship with four different women and despite being asked by each of them whether he had HIV, he answered negatively and proceeded to have sexual relations with each one of them,” Federal Court Justice Simon Noël wrote in his decision, released last week.

“I see no reasons in law or in fact to disagree with this finding.”

The decision contrasts sharply with another recent ruling by a Federal Court judge.

Last month, Justice Yves de Montigny overturned a deportation against a refugee from Honduras who is HIV-positive and admitted having protected gay sex with clients as a prostitute without disclosing his HIV status.

In that case, the court rejected Citizenship and Immigration’s declaration that Marvin Adolfo Galvez Padilla, 46, was a danger to the public, saying the government was out of step with current legal and medical knowledge.

If left standing, Judge de Montigny wrote, it “could have the perverse effect of facilitating the removal of petty criminals, drug addicts involved only peripherally in the drug trade, and individuals who are HIV positive. Such a result would clearly not be in keeping with Canada’s international obligations and must be censored.” National Post