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Damages award to Mapingure: Cause for celebration

16 Dec, 2015 - 00:12 0 Views

The Herald

In November the decision that most of us had been waiting for was finally handed down. The quantification of damages order in the Mapingure case was received with mixed feelings by activists and women in general. Some were excited, some thought it was a mockery whilst others were indifferent as they did not really know what to make out of that decision. This had been a case that has been running ever since 2006 and it only reached its finality nine years later with an order to the Ministry of Health and Ministry of Home Affairs to jointly and severally pay a total of $6500 being damages for pain and suffering that was incurred by Mildred Mapingure for wrongful pregnancy.

Brief facts of the case are that on April 4 2006 Mildred was robbed and raped by robbers at her home in Chegutu.

The following morning she lodged a report at the nearest police station. She requested for assistance to get medical attention. She was at the end of that day taken to hospital after having been sitting the whole day being told that the Victim Friendly Officer was not around to assist her.

Upon arrival at the hospital she was attended by a doctor who only attended to her injured knee and denied her any preventative treatment alleging he could only administer it in the presence of a police officer.

After her initial attempt at getting treatment she made numerous trips to the police and the hospital seeking for help and medical attention to no avail until the 72-hour window period lapsed without her accessing the necessary medical interventions to prevent pregnancy, the transmission of STI’s and HIV and AIDS.

When the 72-hour period had lapsed the doctor warned her that there was nothing that he could at this point to assist her. As vigilant as she was, she approached the investigating officer who referred her to the prosecutor who she told that she had no intention of keeping the pregnancy that had been as a result of the rape incident.

The prosecutor erred and told her that she would have to wait till the case had been concluded at trial. After a lot of back and forth she finally got a certificate of termination when she was 7 months pregnant and the matron at the hospital where she went for termination advised her that it was no longer safe to do so and declined to terminate.

It is against this background that Mildred was now suing for pain and suffering as a result of failure to terminate her pregnancy after having fallen pregnant as a result of a rape. What the Supreme Court decided was that she could only get damages for failure to prevent pregnancy and not for failure to terminate as the law on Termination of Pregnancy was not clear in terms of the different duties and responsibilities of the different concerned parties.

The correctness of that judgment is not a point of discussion in this article as I will dwell on the aspect of the fact that Mildred could pursue and sue for damages resulting from wrongful pregnancy.

The judge held that “although the present claim is without precedent in this jurisdiction . . . in short, an unwanted pregnancy can, depending on circumstances of its occurrence, constitute actionable harm. Accordingly, the appellant is entitled to proven damages arising from the failure to prevent her pregnancy”.

“It cannot be doubted that the appellant (Mildred) did suffer harm as a result of the failure to prevent her pregnancy . . . 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.” This decision was a cause of celebration in so far as the acknowledgement that had it not been for the negligence of the police officers and the doctors that attended to Mildred she would not have fallen pregnant.

After getting this judgment from the Supreme Court Mildred then lodged a claim for damages resulting from wrongful pregnancy and a point to note NOT for wrongful birth. Any critique to the quantum of damages to the tune of $6 500 should be viewed in regard of the fact that these damages technically are for the 72 hours that Mildred could and should have gotten medical attention to prevent the pregnancy.

The order for damages gives so much hope to so many women who in most instances are the ones that fail to get services necessary when they have been raped. For time immemorial women would suffer as a result of the inaction of service providers but the narrative has been changed due to the possibility of extension of aquilian liability to find cause of action in delict.

The order by the High Court allowing for the payment of $6 500 for the pain and suffering of Mildred is the reason for this article.

This should be a cause of so much joy as this judgment is of so much jurisprudential value as it has laid the ground and filled the vacuum that was there previously as there was no precedent in this jurisdiction.

Women ought to celebrate as now there is a framework that can be used in quantifying damages of this nature using the Mildred Mapingure case as the benchmark in the narrative of accessing justice especially with regards to sexual and reproductive cases moreso for rural women who in most instances find themselves stuck with no access to life saving services.

Juxtaposing the implications of the decision with the obligations of the state with regards to the different international human rights instruments that Zimbabwe is a signatory brings about a very interesting perspective which expounds the benefit arising from this jurisprudential judgement.

The Convention on the Elimination of All Forms of Discrimination against Women 1979, ratified by Zimbabwe on 13 May 1991, Articles 4 and 14 of the Maputo Protocol to the African Charter on Human and People’s Rights of Women in Africa 2003 and article 4 of the United Nations Declaration on the Elimination of Violence against Women 1993, which provides that women who are subjected to violence “should be provided with access to the mechanisms of justice and . . . just and effective remedies for the harm that they have suffered” as well as information on “their rights in seeking redress through such mechanisms” lay the backdrop for the claim in this matter.

Invoking these instruments calls for the Government to be accountable especially with regards to the obligations set out in these instruments that Zimbabwe is a signatory.

The judgement reminds the Government of what they signed up to and the duties and obligations they owe to their general populace, especially in this instance, women who find themselves as survivors of rape faced with failure to access the necessary services.

This inevitably has a bearing on the assessment of Government’s compliance to the regional and international conventions that it has signed which gives meaning and direction to the human rights discourse in Zimbabwe especially with regards to women’s sexual and reproductive rights.

Women have been given a tool of emancipation wherein they know they can sue for failure to access timely services and it is a warning to the different ministries that have been sued in this instance and many others of the extension of vicarious liability when their employees fail to give the expected services to those seeking for help.

Why do I keep arguing that this decision with some arguable defaults is a cause of victory for women?

It brings me to what I feel most people should have done before dismissing the award of $6 500 as paltry. Basic calculations.

The damages are for wrongful pregnancy which should have been avoided.

“Women should be provided with access to the mechanisms of justice and . . . just and effective remedies for the harm that they have suffered”

A pregnancy can be avoided within three days. Technically it means that Mildred was awarded $6 500 for the three days that her pregnancy ought to have been prevented.

This means that in essence Mildred was awarded a total of $2 166 for each day that her pregnancy, were it not for the negligence of the different service providers would have been avoided.

This judgment has set what could be viewed as a minimum premium for quantification of damages of that nature. As others would say it is prudent to look at a cup as half full rather than half empty.

Mildred’s case paved way for so many other women who find themselves short changed by the system in their quest for justice and services in the unfortunate event that they have been raped.

The courts have given so much hope to women and that calls for celebrations. Written By: Tariro Tandi, Transformative Justice Manager

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