- Whether or not there was negligence on the part of officials involved in the manner which they dealt with Mapingure’s predicament?
- If there was negligence, whether Mapingure suffered actionable harm as a result and thus whether the state was liable in damages for pain and suffering and maintenance of the child?
Judgment in Mapingure V The State: A step forward for women’s rights or a token gesture
On Tuesday 25 March 2014, the Supreme Court of Zimbabwe ordered the government to compensate a rape victim, Mildred Mapingure, after the State failed to prevent a pregnancy resultant from the rape. Subsequent to the decision, there has been much discussion on social media platforms in Zimbabwe on whether the decision should be celebrated or rather viewed as a case of “kubatiswa dombo” (a Shona saying literally translated “being given a stone to hold” which figuratively speaking means: being given a meaningless token in place of something of more value). The argument is that the judgment in Mapingure is not worth celebrating as it is nothing more than a nominal gesture to appease the women’s rights movement yet fails to address the fundamental issues relating to women’s rights to autonomy and self-determination. What follows is an analysis of the Mapingure judgment, highlighting the positive aspects of the judgment which are indeed a step forward for women’s rights, as well as taking a look at the problematic aspects of the judgment. For ease of reference, a brief outline of the facts and history of the case will be provided. The Facts of the Case On 4 April 2006, Mapingure was attacked and raped by robbers at her home in Chegutu, Zimbabwe. She immediately lodged a report with the police and requested that she be taken to a doctor in order to access medication to prevent pregnancy and any sexual infections. After some delays at the police station she was taken to the hospital later in the afternoon. However, the doctor only treated her knee injury stating that he could only provide the medicine to prevent pregnancy and any sexual infections in the presence a police officer. Mapingure repeatedly went to the police in the days that followed but was advised that the police officer mandated to deal with her case was not available.When she returned to hospital, the doctor insisted that she could only give her medication if a police report was provided. On 7 April, Mapingure was eventually accompanied to the hospital by another police officer but was informed that she could not receive the medication she had requested as the prescribed 72 hours within which the emergency contraception should be administered had elapsed. On 5 May 2006, Mapingure’s pregnancy was formally confirmed. Upon discovering she was pregnant, Mapingure sought a lawful termination; as a victim of rape she is eligible for an abortion under Zimbabwe’s Termination of Pregnancy Act. A prosecutor and magistrate erroneously told her that she could not acquire the magisterial certificate required for termination until the rape trial had been completed. When she eventually obtained a certificate of termination on 30 September, it was no longer safe to carry out the termination. Mapingure gave birth on 24 December 2006. The Court Process and Decision Mapingure approached the High Court citing the Minister of Home Affairs; the Minister of Health and Child Welfare; and the Minister of Justice, Legal and Parliamentary Affairs as respondents. She claimed damages in the sum of US$10 000 for physical and mental pain as well as US$41 904 as costs of maintaining the child she had as a result of the rape.The government failed to respond to Mapingure’s lawsuit but in December 2012, the High Court nonetheless handed down judgment in favour of the state, arguing that her misfortune was a result of her own ignorance as to the correct procedure to follow in order to acquire a termination of pregnancy and not any wrong doing on the part of the respondents. The High Court argued that it was not the mandate of the officials involved to advise Mapingure on the right procedures to follow to ensure that she got the services she needed. On appeal, the Supreme Court ruled that the State was liable for failing to provide Mapingure with emergency contraception to prevent the pregnancy and ordered the government to pay damages. The Court, however, dismissed the claim that the State was liable for failing to ensure a timeous termination of pregnancy, and thus had to provide maintenance for the child. The case was referred back to the High Court for a determination of the quantum of damages. The Positive Aspects of the Judgment The Court felt that there were two important enquiries to be made: