JUDGMENT IN MAPINGURE V THE STATE: A STEP FORWARD FOR WOMEN’S RIGHTS OR A TOKEN GESTURE

Salc : Nyasha Chingore

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:

  • 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?

 

The Court found that there was negligence on the part of the doctor and the police in ensuring that the pregnancy was prevented.

The Court found that the doctor failed in his duty to ensure that pregnancy was prevented. The Court was of the opinion that “a reasonable person in the position of the doctor would have foreseen that his failure to administer the contraceptive drug or his failure to advise the appellant on the alternative means of accessing that drug, would probably result in her falling pregnant. Being in that position, he should have taken reasonable steps to guard against that probability.”

The Court also found that the police had failed in their duty to assist Mapingure so that she could promptly receive the requisite medical attention. The Court noted that, “…the police failed to compile the requisite report or to accompany the appellant to the doctor despite several spirited efforts by her to obtain their assistance.” The Court was of the opinion that the circumstances created by the facts were such as to create a legal duty -outside of their statutory function – on the part of the police to assist Mapingure in her efforts to prevent her pregnancy.

The Court found that Mapingure did in fact suffer actionable harm which could entitle her to damages.

The Court found that there was a causal link – an important factor to be established- between negligence of the police, the doctor and the pregnancy. The Court noted that although the originating cause of Mapingure’s pregnancy was the rape, “its proximate cause was the negligent failure to administer the necessary preventive medication timeously”. The Court pronounced that there was no doubt that Mapingure suffered harm (including mental anguish) as a result of the failure to prevent her pregnancy. The court found that this harm was foreseeable and accordingly made a claim for damages factually and legally sustainable. The Court thus found that that the Ministry of Home Affairs and the Ministry of Health and Child Welfare were liable to pay for damages for the negligence of the police and the doctor respectively.

The Court conceded that the law on termination lacks clarity.

Importantly, the Court conceded that Zimbabwe’s Termination of Pregnancy Act is “ineptly framed and lacks sufficient clarity as to what exactly a victim of rape or other unlawful sexual intercourse is required to do when confronted with an unwanted pregnancy.”

The Court recognised the relevance of international norms and conceded that the State may be failing to meet its international obligations.

The Court made important pronouncements as to the importance of international standards that protect a woman’s right to protect and control her biological integrity. Whilst clarifying that international instruments cannot operate to override or modify domestic law unless and until they are internalised and transformed as rules of domestic law, the Court found that it was proper and instructive to have regard to them as embodying norms of great persuasive value in the interpretation and application of domestic statutes and common law. Within the context of the discussion on the role of international standards, the Court made some admissions that the Zimbabwean Government may be failing in its obligations under international human rights standards; particularly the Convention on the Elimination of all forms of Discrimination Against Women and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa.

Problematic Aspects of the Judgment
Whilst the judgment makes some very important positive findings which are beneficial particularly for timely access to services by survivors of sexual violence, there are certain curtailments made by the judgment, the implications of which cannot be overlooked.

The Courts failure to find negligence in respect of the termination of pregnancy.

The Court did not find the failure by the police to ensure that Mapingure got a certificate of termination, in a timely manner, consequential. The Court also did not take issue with the inaccurate advice given to Mapingure by the prosecutor and the magistrate (Mapingure was told that she could not obtain a certificate before the rape trial was concluded). This contributed to her failure to get a certificate of termination in a timely manner.

The Court found instead that the obligations of the authorities cannot be extended to include a duty to initiate proceedings to obtain a certificate of termination on behalf of the victim but rather that it falls on the victim to take steps to obtain the certificate. This finding leaves a bitter after taste, particularly bearing in mind the Court’s own comments regarding the vagueness of the statute in question and the fact that the case related to a victim of crime who was legally unrepresented.  It is not clear why the same reasoning the Court used to make an extra statutory duty on the part of police in the case of prevention of pregnancy does not apply for the termination in the case of the Magistrate and the Prosecutor.

The Courts curtailment of damages.
The Court found that the only damages Mapingure was entitled to were for the failure to prevent pregnancy and the resulting pain. The Court thus ruled that the State cannot be held liable for damages arising from failure to terminate pregnancy and therefore was not liable for the pain and suffering caused by having to carry a pregnancy to full term. In essence the Court said Mapingure is only entitled to “proven damages” from the date of her rape to the date of confirmation of her pregnancy (a period of approximately a month) because the causal chain for damages was broken by Mapingure’s failure to institute proceedings to terminate her pregnancy. The Supreme Court also dismissed Mapingure’s claim for damages for the maintenance of her minor child on the same reasoning.

Conclusion

One school of argument suggests that the apparent contradictions in the judgment could have been informed by the general illegality of termination of pregnancy. It is argued that although the tragic set of facts compelled the Court to want to be seen as doing something, the Court was cautious in basing the cause of action on non-prevention of the pregnancy, a less contested issue.

While the Zimbabwean Supreme Court may certainly have missed an opportunity to show greater commitment to women’s rights, this judgment makes very important pronouncements that can be used as a stepping stone to further advance the women’s sexual and reproductive rights in Zimbabwe. Although many sectors of the coalition backing the Mapingure case in Zimbabwe rightly would have wanted to see a more momentous judgment, it must be remembered that strategic litigation is often an incremental process in which smaller victories work together and build up to significant triumphs. Large streams from little fountains flow, Mighty oaks from little acorns grow. In the discussion around the vagueness of the Termination of Pregnancy Act, for example, the Court implores civil society to take this up with the relevant Ministry. Therein may lie an opportunity to reopen a broader debate on termination of pregnancy in Zimbabwe.

This entry was posted in Blog, Nyasha Chingore-Munazvo, Sexual and reproductive health rights, Women’s rights, Zimbabwe and tagged sexual and reproductive rights, women’s rights, Zimbabwe. Bookmark the permalink.

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