Fidelis Munyoro Chief Court Reporter
A CHEGUTU woman who was attacked and raped during a robbery eight years ago, finally got justice after the Supreme Court yesterday partially allowed her appeal for compensation for her and the child born out of the crime. Ms Mildred Mapingure was raped on April 4, 2006 at her Chegutu home.
She immediately reported the case to the police and requested that she be taken to a doctor for medication to prevent pregnancy and any sexually transmitted infection. However, her efforts to get assistance from the relevant authorities to access necessary emergency health services within the required time frame were fruitless. She then fell pregnant and later gave birth to a child against her will.
To date the rape case has not been prosecuted. Through the Zimbabwe Women Lawyers Association, Ms Mapingure sued the Government at the High Court for US$10 000 in damages for failing to prevent and terminate the pregnancy, pain and suffering, and US$41 000 as maintenance for the child born as a result of the rape. High Court judge Justice Francis Bere rejected the claim prompting the ZWLA to approach the Supreme Court on appeal.
Yesterday Justice Bharat Patel handed the judgment that partially upholds and protects women’s sexual and reproductive rights, which was well received by women and human rights organisations as a progressive judgment.
“In the instant case, it cannot be doubted that the appellant did suffer harm as a result of the failure to prevent her pregnancy,” said Justice Patel.
He said the facts presented before the apex court of appeal, whose other members were Justices Paddington Garwe and Anne-Mary Gowora, there was nothing to indicate that the harm on Ms Mapingure was not reasonably foreseeable.
“It was manifestly clear, to both the police and the doctor, that the appellant was vehemently averse to failing pregnant. Consequently, they must have foreseen that, if she were to fall pregnant, she would inevitably undergo the mental anguish of an unwanted pregnancy.
To this extent, the appellant’s claim is factually and legally sustainable as having resulted from the negligence of the police and the doctor,” he said.
To this end, Justice Patel confirmed that Ms Mapingure partially succeeded in her appeal and on her claim in the lower court against the police and the Ministry of Health. He set aside the lower court decision and ordered that the issue of damages be remitted to the High Court for quantification. ZWLA programmes co-ordinator, Ms Abigail Matsvai, welcomed the judgment saying it highlighted that Zimbabwe was bound by virtue of its international obligations to afford sexual violence survivors effective protection and control of their biological integrity.
“It is a landmark judgment that re-emphasises the responsibility of duty bearers to act diligently,” said Ms Matsvai.
“Furthermore it highlights that their failure to act can give rise to liability. It gives the police an extra duty to act ‘outside and beyond’ their ordinary mandate so as to assist citizens.”
The judgment, said Ms Matsvai, brought to the fore the need to amend the Termination of Pregnancy Act to be clear on what exactly a survivor of sexual violence is required to do when confronted with an unwanted pregnancy.
“We, therefore, call for the alignment of laws to the new Constitution to factor in some of the relevant amendments for the advancement of women’s rights.”
Advocate Isiah Mureriwa, who argued the matter for ZWLA, said it was a progressive judgment.
“For me it is important in so far as the judgment itself effectively extends the traditional acquilian liability and holds that the unwanted pregnancy, depending on the circumstances of its occurrence can constitute an actionable wrong,” said Adv Mureriwa.