THE landmark ruling by the Supreme Court in the rape-pregnancy case of Mildred Mapingure marked an important legal turning point for women’s sexual and reproductive rights in Zimbabwe, in particular the survivors of sexual and gender-based violence.
This is the first time in the country’s legal history that a victim of rape has argued in court for damages arising from failure to prevent pregnancy due to rape.
Mapingure is a soldier without a sword. She defied the odds and fought the battle of her life.
In that war she got support from the Zimbabwe Women Lawyers Association.
She was claiming US$10 000 in damages for failing to prevent and terminate the rape-pregnancy and an additional $41 000 as maintenance for the child and for the pain and suffering she endured.
She had sought damages arising from her failure to access the emergency contraception within the prescribed period of 72 hours of rape due to delays caused by the police that dismally failed to provide her with proper advice and a doctor’s inability to distinguish between termination of pregnancy and emergency contraception.
After failing to prevent the pregnancy, Mapingure then sought access to legal abortion in terms of Termination of Pregnancy Act, which she was entitled to as a victim of rape, but due to judicial retards, she was unable to obtain the court order in time and eventually gave birth.
The apex court of appeal led by Justice Bharat Patel recently upheld the appeal though partial, and held the State liable for failing to provide Ms Mapingure with emergency contraception and ordered it (State) to pay damages, which now need quantification at the High Court.
On her part she has been vindicated.
In his decision, Justice Bharat Patel made an important observation in this novel case when he recognised that the police have extra statutory duties beyond those specified in the Police Act, which is the duty to act with care to aid and assist citizens.
“In the specific circumstances of any given case, it may be legally incumbent upon them (police) to act outside and beyond their ordinary mandate, so as to aid and assist citizens in need, in matters unrelated to the detection or prevention of crime,” says Justice Patel.
“Consequently, where such a legal duty is found to exist, and harm that is foreseeable eventuates from failure to prevent it, the victim of that harm may be entitled to pursue and obtain appropriate compensation through a claim for damages, having regard in every case to considerations of the public policy.”
Victims of horribly violent or morally reprehensible crime of rape or incest can lead to pregnancy of women. And when this occurs, abortions are considered the best option to safeguard the mental health of a woman who becomes pregnant due to rape or incest.
Most gender and reproductive health activists say a victim of rape pregnancy is not obliged to carry the fetus to viability.
This is because, they say, leads women to mental anguish of nine months by thinking over the violence committed against her as a result of rape or incest. Gender and reproductive rights experts say there is no doubt that the mental health of the raped woman is more important than that of a fetus.
Against a woman’s mental health, integrity and health, a fetus is an aggressor. An aggressor can be repelled by defending personal and human values for victims of rape or incest.
And the latest judgment is alive to the fact that in the interest of domestic law, courts should go beyond national law and where necessary, they should have regard to precedents set in other jurisdictions.
The decision is seen as unique and important historical milestone as it exposes the weaknesses of the Termination of Pregnancy Act.
Laws remain unclear and ministries of Health and Justice, Legal and Parliamentary Affairs need to amend Section (4) of the Act to provide clarity on what exactly is expected of a victim of unlawful intercourse.
“It is an important judgment because it has shown that there is need to have clarity in the law, especially the Termination of Pregnancy Act section 5,” says Ms Sylvia Chirawu, the national co-ordinator of Women and Law In Southern Africa Research and Education Trust.
“The case also recognised international instruments and to that end it has created a judicial precedent in terms of which these instruments can be cited in future and in any event the new Constitution recognises these instruments in section 34 and section 46(1)(c).”
Nyasha Chingore, project lawyer at the Southern Africa Litigation Centre (SALC), which closely followed the case, says the judgment was no doubt a significant victory for women’s sexual and reproductive rights in Zimbabwe.
“This ruling sends a clear signal that it is time for the Zimbabwean Government to prioritise the rights of women, particularly the survivors of sexual and gender based violence,” she says.
“It has failed them too many times in the past and this must be corrected.”
Legal analysts say the watershed ruling is the first in the country’s jurisprudence and courts, which they say have started on a better footing than the Americans in the case of Zepeda vs Zepeda.
In that case the Americans simply recognised the harm but did not provide the remedy, whereas our courts have recognised the harm on the victim and provided the necessary remedy.
Now the question that should be asked is where the child born out of wrong stands at law.
What remedy if any should be provided to the product of the rape, in this case taking into account the fact that the court has agreed in principle that the State was negligent in failing to take requisite measures legally available at its disposal to stop the pregnancy.
If the pregnancy was wrong then the life that came out of it also wrongful. Who should carry the burden of this life?
It is clear that the case, which was argued in the Supreme Court, was structured in favour of the mother’s interests as the victim of rape.
No emphasis was placed on the interest of the child in the structure that the case has been argued so far.
Advocate Isaiah Mureriwa, who argued the case for ZWLA, feels that given the confirmation by the court that the non-prevention of the pregnancy was an actionable wrong,
the ruling opens a scope for further litigation.
“Obviously the child would grow up knowing fully that she was conceived out of a wrong,” says Adv Mureriwa.
“On that the child is on the same footing as the child in the Zepeda vs Zepeda case. Bearing in mind that the child in the Zepeda vs Zepeda took the circumstances of his birth to court and argued that, therefore, his life is wrongful and the court held that the life was indeed wrongful and the child’s harm was permanent.”
Advocate Mureriwa further says: “One can easily foresee litigation in Zimbabwe based on the concept of wrongful life. One can only wonder how our courts and Zimbabwe jurisprudence would relate to a further and new cause of action founded on the concept of wrongful life.”
“This child in question obviously will have stigma attached to the circumstances of his birth but the new Constitution clearly states in section 56(3) that a child born in or out of wedlock should not be discriminated against based on the circumstances of their birth,” Chirawu says.
Concurs prominent Harare lawyer, Mr Terence Hussein: “In this case, the basic concept is that the best interests of the child always prevail and the High Court is the upper guardian of all minor children in Zimbabwe.
“What happened was extremely tragic to both the mother and the child and hopefully our legislature can look into such scenarios with a view to providing a remedy for future incidences.”
Rape-related pregnancy now occurs with greater frequency in the country. It is a cause of many unwanted pregnancies and is closely linked with family and domestic violence. And, as the country addresses the epidemic of unintended pregnancies, greater attention and effort should be aimed at preventing and identifying unwanted pregnancies that result from sexual victimisation.