Last week The Con’s Percy Zvomuya reported on the case of Mildred Mapingure in the Supreme Court of Zimbabwe. This week The Con brings you an opinion piece reflecting on the case and the judgement, written by Zimbabwean  lawyer Sarudzayi Njerere.

 

The story of Mildred Mapingure, shocking as it is, is summarised in the 33-page judgment of the Supreme Court in less than a page. In that story we can trace how the police, as well as the health and justice systems, failed this woman dismally. The tragedy that befell Mapingure is also a tragic indictment on a society that views and treats women as second-class citizens.

The police, despite their much vaunted victim-friendly system, which apparently runs all the way from the police station to the court, appeared to think nothing of letting Mapingure, who had just survived being raped and robbed seek medical treatment alone. If there is indeed an administrative requirement that victims of rape can only be given the medication necessary to prevent pregnancy and or infection in the presence of a police officer, then why was she left to go alone? Particularly if, as the doctor advised, the medication must be administered within 72 hours?

When Mapingure confirmed she was pregnant, she indicated she wanted the pregnancy terminated and was advised by the police to approach the public prosecutor, who in turn indicated that termination could happen only after the trial was finished. Mapingure, on the advice of the police, returned to the prosecutor’s office and indicated she required a pregnancy termination order. The prosecutor consulted a magistrate instead of opening the statute book. The magistrate, using common sense and without reference to the statute book, also stated that the termination order could not be given before the trial was concluded.

When Mapingure finally obtained a pregnancy termination order months later, she was told at the hospital that the pregnancy was too far along to be terminated. She gave birth to a baby boy. Mapingure sued the minister of home affairs, the minister of health and child welfare, and the minister of justice, legal and parliamentary affairs. She claimed damages to the sum of US$10 000 (just more than R100 000) for pain and suffering, as well as maintenance for the child.

One must remark at the amount of these damages. The state has probably paid more to its legal counsel in the matter. The damages claimed by Mapingure are certainly nowhere in the region of the hundreds of thousands of dollars we often read about politicians claiming as damages for defamation. This woman is now saddled with an unplanned child and she only claimed US$10 000. She should have claimed more. Given the tragic circumstances, surely the government would have been better advised to settle.

When the high court heard the matter, it declined to grant a default judgment against the defendants, who did not even deign to plead to Mapingure’s claims. The high court found that Mapingure’s “misfortune was the result of her own ignorance as to the correct procedure to follow”. Thus, Mapingure appealed to the supreme court. About 10 months after hearing the matter, the supreme court handed down judgment. By now Mapingure child had started school  The supreme court found in favour of the appellant against the minister of home affairs and the minister of health and child welfare for damages for any actionable harm sustained by Mapingure.

In other words, the failure by the police and the doctor to prevent an unwanted pregnancy resulting from rape is actionable. The minister of justice’s officials were exonerated on the basis that the functions of the prosecutor and magistrate “did not extend to the giving of legal advice, whether accurate or otherwise to the appellant. It was for her to have sought that advice aliunde (elsewhere).” But Mapingure’s ordeal is not over. She has to go back to the high court to prove her damages − so perhaps in another six years she will find justice.

The first question is how and why the system failed Mapingure. Clearly she did not just sit back and sob her heart out. She is the embodiment of a reasonably informed woman who knows to immediately report rape. The police and other actors are constantly urging survivors of sexual violence to make reports as early as possible so that they can be medically attended to. This Mapingure did. But, clearly, the police themselves do not know or do not care to follow the practical steps necessary to assist a woman in Mapingure’s position – or the letter of the law. Or perhaps it is merely symptomatic of the inefficiency that we have come to expect from many state departments in Zimbabwe.

When ordinary citizens hear that every police station has a Victim Friendly Unit geared to assist survivors of sexual crime, they imagine that once a survivor enters the portals of a police station, she will be supported by the procedures put in place to assist her, that sympathetic police officers will bend over backwards not to compound an already stressful situation. But what we typically find is a lack of knowledge and sympathy at the police station; Mapingure was sent to the doctor twice on her own.

Is this because Mapingure is a black woman of no apparent means? I imagine that if Mapingure had driven to the police station in a Jeep Cherokee or some other high- consumption vehicle, her treatment at the hands of the police and later the prosecutor and magistrate might well have been different. It is fact that women are treated badly in the public domain; particularly poor women. While Mapingure was on her tortuous trod, the country held two general elections and a new constitution was promulgated. Section 56 of the Constitution of Zimbabwe provides for equality: “All persons are equal before the law and have the right to equal protection and benefit of the law.”

The right to equality was also in the old constitution, but it is clearly one of the most disregarded rights. We are not all treated equally. Mapingure certainly was not afforded equal protection and benefit of the law. She was not even treated with common human decency. The supreme court quite rightly criticises the legal provisions pertaining to termination of pregnancy, which it says are “ineptly framed and lack sufficient clarity as to what exactly a victim of rape or other unlawful intercourse is required to do when confronted with an unwanted pregnancy”.

In my view, this lack of clarity and the lackadaisical attitude of the police, the prosecutor and the magistrate stems from the patriarchal shroud that envelops women when it comes to their wombs. Women are not in charge of their wombs, which are viewed merely as vessels for carrying the next generation. This patriarchal attitude has been carried over into the new Constitution, where it is provided under section 48, which deals with the right to life: An Act of Parliament must protect the lives of unborn children. That Act must provide that pregnancy may be terminated only in accordance with that law.” Unless the Termination of Pregnancy Act (Chapter 15:10) is amended, it is only a matter of time until another woman finds herself in the same situation Mapingure did. But it would, of course, be too radical to give women full control over their reproductive health and legalise abortion.

The next question is why it took five years for an essentially undefended matter to be heard in the high court? The lawyers representing Mapingure can best answer this. But this lays bare the shameful and sluggish nature of the administration of justice. Mapingure was represented by the Zimbabwe Women Lawyers Association (ZWLA). Many women fail to access legal advice because it is costly and organisations like the ZWLA do not have the capacity to take on every matter that lands on their doorstep. Women − being more likely to be poor − are less likely to be able to afford legal advice. If a case is going to take more than seven years to resolve, it discourages many from even trying. Mildred must have lodged her claim in Zimbabwean dollars and had to amend it once the country adopted other currencies. All this takes time and energy.

It is noteworthy that even the supreme court itself took about 10 months to hand down judgment. The Judicial Service (Code of Ethics) Regulations, 2012, provide in Section 19 that reserved judgments are to be delivered no later than 180 days from the date when judgment is reserved: “Where a judgment is reserved to be delivered on notice, the judicial officer shall use his or her best efforts to ensure that such judgment is delivered within the next 90 days and, except in unusual and exceptional circumstances, no judgment shall be delivered later than 180 days from the date when it is reserved.” Let us not forget that Mapingure still has to go back to the high court for her damages to be quantified.

The supreme court exonerated the minister of justice and found that it is not the business of prosecutors and magistrates to give legal advice. This is indeed true. But in reality, members of the public often go to the prosecutor’s office for off-the-cuff advice, which is usually related to some offence that has already been committed. They might ask how to get compensation for a cow that was stolen, or whether they can sue civilly for damages. The public relies on prosecutors to point them in the right direction. It is assumed that prosecutors are trained in the law, which is often not true as most prosecutors are police officers, prison officers and army officers who have been seconded to the ministry of justice. In any event, legal services are not readily available in most parts of the country. Most law firms in Zimbabwe are concentrated in Harare, Bulawayo and Masvingo. Some towns do not even have law firms. So the issue of geographical accessibility, as well as financial affordability, is critical. In this instance, though, there are two law firms in Chegutu.

But in terms of this I would respectfully disagree with the supreme court. If a professional undertakes to render advice, they must take all reasonable steps to ensure that the advice is correct. For the prosecutor and magistrate not even to have a rudimentary knowledge of the Enabling Act is surely grossly derelict, and the public expects otherwise from them. If I go to a doctor and he performs an eye operation on me, can he turn around and say, “Actually, I am not an eye surgeon and I had no business operating on you in the first place”? Surely not!

The story of Mapingure teaches us that until women are safe in both the private and public domains, there is no guarantee that this will not happen again. It teaches us that justice takes an immeasurably long time to attain, and even then it may remain elusive. It teaches that society’s patriarchal refusal to give women full reproductive choices and rights produces ugly scars on women and children’s lives. It teaches us to appreciate and salute all the Mapingures who have, despite obstacles at every turn, tenaciously clung to the illusion of a just society. We must also salute the ZWLA for assisting women like Mapingure in groundbreaking cases such as this.

 


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