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Publications (8)

Zimbabwe Women Lawyers Association is a non-profit making organisation based in Zimbabwe, which strives to create a just world free from injustice and inequality – and we work 365 days a year to help that vision become a reality.Our mission is to develop, defend and dialogue on women and children’s rights.

 

CONFERENCE CALL

 

 

 

THEME: ‘Making the constitution work for women and children: Translating gender sensitive constitutional provisions into a tangible reality.’

 

 

 

 

 

 

The Zimbabwe Women Lawyers Association (ZWLA) is an Association of Lawyers whose mission is not only defending, developing and dialoguing on women’s rights in Zimbabwe, but also representing women lawyers as a constituency, to dialogue on their issues and to defend their causes.

 

 

 

At its formation 21 years ago ZWLA intended to defend the professional interests of women lawyers. With time they realised that there was a growing need for legal aid  provision to indigent women so that they were also able to access justice in a bid to ensure a just and equitable society for all. It was also agreed that there was need to address the plights of women in Zimbabwe through advocacy work, lobbying for law reform and defending the rights of Zimbabwean women in general.

 

 

 

It is within the above context that ZWLA in 2014 initiated an annual Women Lawyers Conference which has two main objectives. The first is to dialogue on the issues arising from the legal profession as well as look at progressive ways of improving and developing as legal practitioners in Zimbabwe in the 21st Century. The second is to dialogue on defending women and children’s rights effectively as well as improve the legal trajectory in terms of the laws and the criminal justice system in a bid to ensure that they are gender sensitive. In 2014, over 80 women lawyers participants mainly from Harare, Masvingo, Kwekwe, Bulawayo as well as women lawyers from the diaspora, which included representatives from South Africa and the United Kingdom, attended the first of its kind conference held in Harare which was convened by Zimbabwe Women Lawyers (ZWLA)   in partnership with the International Commission of Jurists (ICJ). The conference theme was ‘Towards Women Peace and Security: Making the Law Profession Work for Women’.

 

 

This year ’s theme is, ‘Making the Constitution work for women and children: Translating gender sensitive Constitutional provisions into a tangible reality.’

3 & 4 December, 2015

Holiday Inn, Harare

 

 

Zimbabwean women lawyers, especially young lawyers, have expressed concerns over a variety of issues ranging from their inability to penetrate certain spaces within the law profession, the absence of proper mentoring from senior lawyers and the absence of opportunities to develop professionally. ZWLA’s conference seeks to also provide a platform  which will bring Zimbabwean lawyers from all over the world to dialogue on issues which affect them with the aim of providing a lasting solution to their concerns.

 

 

 

ZWLA acknowledges the solidarity from male counterparts within the legal fraternity therefore it is in light of this that ZWLA has a programme termed; ‘Friends of ZWLA’ which works with male lawyers who understand the cause we champion and are empathetic towards the plights of women and children. Friends of ZWLA are also invited to participate in the conference.

 

 

 

Tapping into the knowledge of leading experts, various issues inclusive of but not limited to the following will be discussed:

 

a.    Strengthening Constitutional literacy among Women Lawyers

 

 

 

b.     Overview of Constitutional Advocacy

 

 

 

c.     Realignment of laws to the new Constitution

 

 

 

d.    Constitutional Litigation

 

 

 

e.    Use of International and Regional Instruments in litigation

 

 

 

f.      Knowing the challenges, identifying opportunities and having a personal law career plan.

 

 

 

g.     Navigating different legal careers i.e. how to be a judge, academic or politician etc.

 

 

 

Registration Fee - US$30

 

 

 

Women Human Rights Defenders Awards

 

In addition to the conference, on the 3rd of December, we will also be hosting our annual Women Human Rights Defenders Awards. ZWLA launched the Women Human Rights Defender Awards in 2007 in order to recognize and appreciate the effort made by lawyers towards the promotion and progressive realization of women and children’s human rights.  The award initially targeted lawyers who have done significant work in addressing the law and policy gaps that have subordinated women’s status since independence.  The Awards also targeted lawyers and other Legal experts who have carried out significant work (be it legal representation, lobbying and advocacy, policy analysis and legal research as well as judicial activism, amongst others, in  critical areas that have impacted on women and children’s fundamental rights and freedoms since independence.

 

 

 

The awards have since taken a different turn as they are now considering other non lawyers who are also doing a lot of recognisable work in advancing the rights of women and children. This was as a result of the realisation that there are many people, male and female alike, who are not necessarily members of the legal profession but immensely contribute to the realisation of women and children’s rights who also need to be recognised for their great work.

 

 

 

This year there will be 3 categories of awards and so nominations are being sought for the following categories:

 

 

 

1.     Human Rights Defender(Lawyer)

 

2.     Human Rights Defender(Non-Lawyer)

 

3.     Student Human Rights Defenders

 

For more details, please read attached files or contact:

 

Doreen Gaura: 0777828201 or This email address is being protected from spambots. You need JavaScript enabled to view it.

Tariro Tandi: 0772211437 or This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

 

 

 

  1. The Bill should clearly state the significance of the Gender Commission through the inclusion of constitutional provisions advancing gender equality and promoting the principle of nondiscrimination.
  2. The Bill should state the independence of the Commission as stated in the Constitution.
  3. The Minister of Women Affairs should not appoint the Chief Executive Officer and staff of the Commission.
  4. The Gender Forum should be free for all interested to attend.
  5. The Commission's report on findings and its recommendations should be presented to Parliament.
  6. The power of the Commission should clearly be stated that they shall not investigate a pending criminal case.
  7. The Bill should clearly define:
  • Gender
  • Gender mainstreaming
  • Gender equality and equity

 

 

On the 14th of November, ZWLA recognised four Women Human Rights Defenders under the following categories:

1. WHRD Lawyer

2. WHRD Non-Lawyer
 
3. Young WHRD
 
4. WHRD  ZWLA Client
 
It was an honour for ZWLA to recognise four very different people, who works, resilience and personalities have contrinbuted in diverse ways towards the promotion and protection of women's human rights.
 
Hon. Jessie Majome received the first award for the Women Human Rights Defender who is a lawyer. She was nominated for, among other things, being the 1st woman lawyer to be elected to the Parliament of Zimbabwe, being the only woman lawyer in the 7th and the present 8th Parliament, and using that role to advance women's rights such as in the new Constitution, pushing its implementation, combating gender based violence especially through her motion pending in the House and battling to end early, child & forced marriages. Previous recepients of this award from 2013 backwards are Justice Emilia Muchawa, Nyaradzayi Gumbonzvanda, Justice Priscilla Chigumba , Justice Rita Makarau  and Professor Julie Stewart in 2007.
 
Hon. Jessie Majome receiving her trophy from LRF Director, Deborah Baron
 

The non-lawyer award went to Grace Chirenje, the Director of Zimbabwe Young Women's Network for Peace Building (ZWYNP), through which she has defended women's rights in relation to democracy, good governance and conflict transformation.
 
Millicent Moyo from the University of Zimbabwe received the Young Women Human Rights Defender award for her sterling work at the campus' legal aid office, where she has dedicated her free time to assisting women who need free legal services.
 
The last award went to Mildred Mapingure whose resilience and endurance in fighting for her rights and subsequently the rights of thousands of other women is documented here.
 
An emotional Mildred Mapingure happy to be recognised after 7 years of seeking justice
Zimbabwe Women Lawyers has five new sites out of Harare and Bulawayo and these are as follows:
 
 
1.Murehwa - office 25 and 31 
                   Council Offices 
                    Murehwa 
                    078 327 9481
 
2.Gweru - Musasa office 
                 1 Josiah Tongogara 
                 Gweru 
 
3.Hwange - Colliery Hospital 
                    Health Service Department 
                    Door 13 
                    Hwange  078 327 9487
 
4.Chinhoyi - 125 Midway 
                    Chinhoyi ( at the bus terminus in town ) 
                    078 327 9480
 
5.Masvingo - Office 2 
                     2nd floor 
                     Zimbabwe Court building 
                     J.Tongogara 

                     Masvingo 078 327 9486

If you are aware of any women needing legal aid in these areas please do not hesitate to refer them. Our doors are always open. 

Human Interest Story 1

In a separate interview, a Bulawayo based woman was also assisted by ZWLA was pleased to share her story. Although her case was still pending she felt she had a lot to say about the assistance she got from ZWLA so far and how it had impacted in her life. This is how Marry Moyo (not her real name) aged 46 narrated her story………….

“I am a married woman and came to live in Bulawayo with my husband in 2010. My husband works as a technician at Engutsheni hospital. Four years after we had moved to Bulawayo my husband married another woman despite that our marriage chapter did not allow polygamy (chapter 5.11). He moved from our marital home where we were renting and applied for a company house at Engutsheni. He got the house and moved in with his second wife. In 2005, a year later after he had left me, he fell seriously ill and started looking for me. I felt pity for him and took him back. He was admitted at hospital where I nursed him alone while the other wife was at the rural home. This rural home belonged to me because we had built it together with my husband before marrying the 2nd wife. The vows I made in our marriage (in sickness and in health) made me forgive him and take the responsibility of nursing him. His condition was quickly deteriorating and one day I approached the doctor and asked what he was really suffering from. The doctor requested me to produce my marriage certificate to show that I was his wife before he disclosed any information to me. Upon doing that, he told me he was HIV positive. I explained to the doctor that I had spent the last 2 years of my life without having sexual intercourse with this man or anyone else and so I couldn’t be HIV positive too. The doctor explained what that meant and asked if I was interested in getting tested too. I agreed and after some counselling I took the test. The results were positive and I was so devastated. I walked to his bed and just stared at him in anger and untold bitterness. The pain I was going through was written all over my face and as I went out of the hospital I met some ladies from church and by mere glancing at me concluded that I was bearing bad news, probably that he had passed on. I managed to share the news with one of the ladies from church and my pastor.

For me testing HIV positive meant the end of my life, I thought I was dying despite the doctor’s efforts to explain the differences between HIV and AIDS.  The doctor wrote me a referral letter to Engutsheni hospital for the facilitation of a CD4 count and ARV initiation. He was also put on ARVs and with time he was discharged and came back home. I continued to nurse him despite the pain and the suffering I was going through until he fully recovered. We then moved to the company house and at that time his 2nd wife was sick too back at the rural home. He refused to take her to hospital for treatment saying she was the one who had infected him with HIV. She had also delivered an HIV positive baby and she died shortly after that. The child is still alive and was taken by her mother’s relatives. Shortly after recovering from the sickness, he went back to his old ways of promiscuity. He sent me out of the house to go and live in the rural home. My last born child was about 12 years old and because he couldn’t speak Shona I left him behind for schooling purposes since in Bulawayo he learnt Ndebele. Little did I know that I was exposing my child to intolerable child abuse. My son reports that his father would come home with his 3rd wife (girlfriend by then) and screen pornographic movies on TV in his presence. He sometimes came home after midnight or slept out leaving a 12 year old child alone. He stopped paying the child school fees and my son was in and out of class due to unpaid fees. This happened for a long time since I was stuck in the rural areas. Neighbours tell me that they had begun wondering what kind of a woman will neglect her child like that and expose him to such level of suffering. In all this drama, my son suffered the most and grew up like an orphan when both parents were alive and while he was living with his father. It so happened that one school holiday he came to the rural areas for a visit and when the time for him to return to Bulawayo had come he vehemently refused.

I struggled to convince him to come back until I succeeded. I promised to him that I will quickly look for busfare and come there as soon as possible. I did exactly that and within a short period of time I was on a bus to Bulawayo. I arrived home unannounced while my husband was at work and that gave me an opportunity to witness the kind of suffering my son was experiencing. I arrived at around 7pm and found the child alone in the house. Upon inquiring about his father’s whereabouts, my son was quick to say ‘mum, I’m now used to this kind of life’. On that particular day he came home at around 3.am. I screened the dvds in the house only to discover that 7 of them were pornographic. I will always live to remember that day because of the way he beat me up when he came home and found me in the house. He hit me with a crutch (his crutch) and I passed out, I don’t even know how I was ferried to the hospital upto today (showing visibly scars on her face).  I still have scars on my back. 


 

Marry Moyo showing the scars she succumbed from her husband’s beatings


The fighting continued and in some incidents I succumbed to fractures and lost some of my front teeth (showing her frontline teeth and the gaps there). He finally moved out from the house taking with him some household properties like the TV, DVD and his clothes. He didn’t bother bringing money for the welfare of the children. I sued to do casual jobs in exchange for mealie- meal or even school stockings for the children. One day he just came back home and when he was leaving he attempted to take my jersey with him. I protested against that and in trying to strike me with his crutch I pushed him and he got injured. He reported me to the police, claiming that I abuse him and since he’s disabled (he was affected by polio when he was young) everyone sympathised with him and took me for a wicked woman who abused a disabled person. We went to court but because he was telling lies the magistrate managed to pick discrepancies in his story. I had scars as proof of his abuse while he didn’t any scars to show any injury from my ‘so called abuse’.

Upon noticing this, the magistrate dismissed the case and advised me to come to ZWLA for assistance in applying for maintenance. I was full of doubts thinking because I had heard people saying it’s difficult to get a maintenance order. However, with assistance from ZWLA nothing was difficult and I was awarded $250 per month as maintenance. There came a time when he stopped paying the maintenance until the debt amounted to $2500. I went back to court where he was given up to 3 months to settle this debt which he didn’t and he was arrested and served a 3 months sentence. After sometime, he arranged with people from his workplace to have me evicted from the company house. I was served with papers instructing me to vacate the premise and I rushed back to ZWLA for assistance. Out of ZWLA’s intervention, I wasn’t evicted. He’s now filing for divorce and ZWLA is representing me. ZWLA has assisted me a great deal in all my suffering. I thought I had no relatives to help me in times of need here in Bulawayo but since I found ZWLA I feel confident to face challenges I face”. 

MSC stories, focus group discussions and key informant interviews feedback

In an attempt to assess ZWLA’s effectiveness in the lives of women and the communities at large, data were collected from legal aid clients and community education participants. This information was gathered through most significant change stories and focus group discussions. Data collected reveals that ZWLA’s activities are changing women’s lives in a positive way. This was evidenced from focus group discussions and most significant change stories told by women who had received legal aid from ZWLA. Below are 2 most significant change stories collected from legal aid clients in Bulawayo. 

 

Most significant Change Story 1

Fadzai Madhaka aged 31, a ZWLA client whose divorce case was recently completed was pleased to share her experiences and how ZWLA helped her. This is how she narrated her story………….

 

“The assistance that I got from ZWLA was on matrimonial issues, I think I’m that person who had many issues, I had a maintenance case, protection order and a divorce. I grew up in conservative family; I was a church girl and a typical good girl who got into marriage expecting the best. I met my husband when we were working for the same organisation. We were in love at that time and we had a nice white wedding. When I was right into the marriage that was when I realised that good things don’t always happen to good people. My husband turned out to be an abusive partner and very irresponsible. In the whole duration of our marriage we never really stayed together. He worked in Beitbridge and I was based in Bulawayo. He made me stay with his parents and I wasn’t really happy there. I went out of my way to please people, to please him and to please my in-laws. He was irresponsible and couldn’t support the family though he had a good job. So I ended up being the one taking care of the family while he was busy having a good time with his money.

The main issue that led to the demise of our marriage was infidelity. It was a sad thing to hear that he’s seeing someone and in such situations you start asking yourself questions like is there something wrong with me that is making him go to someone else, it really destroys your ego and self-confidence and that is exactly what happened to me. What made it worse was that even the lady that he cheated with was also working for the same organisation we worked for. They were both based in Beitbridge.  Everyone at work was talking about the affair and naturally, you are the last person to know about it. They even had a child together and our children were born in the same year. It was like at the time I was busy breastfeeding he was also busy impregnating some else. It was really a bad experience. There was a lot of fighting and abuse, we were in and out of the police stations and court rooms, we had a rollercoaster marriage and within the same year of our marriage we were already filing for divorce. I was miserable but because it was a new marriage and I  was raised up in a background that said marriage is for keeps, I had to hang in that marriage. I couldn’t even contemplate divorce.

Telling my aunts about the problems wasn’t helpful in anyway as they advised me to put up saying we will get used to each other, all men are like that and I should learn to be patient and forgiving. So eventually I moved out from the in-laws place and found my own place and he wasn’t happy with that. He told me out rightly that since I have moved out it meant the end of our marriage. He even stopped calling to find out how the child was doing, that’s when I decided to go for maintenance. ZWLA assisted me and I got $250 per month which was good at the time. Although it was a good move, it also made matters worse because he thought since he was giving me his dollar he could do anything that he wanted with me, so he would come to my place, beat up and even in the streets. Everyone in the block of flats I lived knew us because of the fights we had. My flat always had broken windows and doors from the fighting. At one time we were in the newspapers regarding the violence and the beating I got from him. One incident I vividly remember was when he brutally hit me because he was angry that I had a new phone. He probably thought someone had bought that phone for me. We were at his parent’s place and he beat me in front of his siblings and other family members.  He wasn’t happy with the maintenance that he was made to pay and at one time he came and took the child from me to his parents and the boy was only 6 months old. I came back to ZWLA and got a protection order.

Although I had a protection order I would still allow him in my home and only when he got violent I would rush to the police to report him for breaching the protection order and then he would get arrested. In all the occasions I had reported him for breaching the protection order I would later feel pity for him and go back to the police to get him out of the cells. The reason I would allow him in my home and feel pity for him when he’s arrested was I  felt I didn’t want to deny my son time with his father, as someone who also came from a broken home I told myself I didn’t want my son to grow up the same way I did. Eventually he filed for divorce as a self-actor (with no lawyer to represent him) and I consented. Although there was consent the divorce took about 3 years to be concluded. This was because we didn’t agree on the sharing of property. We didn’t have much property since we had not been married for a long time but yet he wanted us to share everything in half including things like teaspoons and kitchen utensils which were largely wedding gifts from my mum, relatives and friends. He then went quiet and stopped filing papers for some time. He however went on to have another wedding the same marriage chapter as mine (chapter 5.11) which does not allow 2 wives and that was a criminal offence.  I heard the news about the wedding before it transpired and people were actually saying I should go with my marriage certificate and stop the wedding. I asked myself some questions: do I still love this guy? What do I gain from stopping his wedding? Our marriage is long over and what will I benefit from stopping the wedding? I made peace with it and allowed the wedding to take place. I came to ZWLA for assistance in the divorce processing and at that time he was serious too, so he got a lawyer to represent him.

Our divorce was finalised 5 months after his second wedding.  He pays maintenance although he’s not consistent. I lost my job and I have since moved back home where I don’t pay rentals. I’m trying to make the best for my child and at one time I wanted to go back to the maintenance court to resolve the issue of his arrears but frankly the court is not a place you want to visit frequently, court processes take long to be resolved and the people who work there are sometimes hostile. All these factors inhibit women from taking action and claiming their rights. The assistance I got from ZWLA was immense and besides being assisted legally, of note was the empowerment aspect I got. I got to know and affirm my rights. I became more assertive and even if I come across someone going through what I went through at that time, I’m in a better position to assist them and give advice based on the assistance I got from ZWLA. I can refer people for services. Throughout all this drama, trouble and pain I went through, I emerged stronger, more assertive and with increased knowledge of my rights. I read the newspapers about women who are abused and yet put up with that and are sometimes eventually murdered by men and I realise that I made the right decision to give up that marriage. From the assistance I got from ZWLA I’m better able to talk to other women in similar situations, I share my story and I blog. If ZWLA has a newsletter I’m very much willing to write an article about my story for publication”.

 

1. Summary of facts and findings of the Supreme Court of Zimbabwe

Summary

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.

Her claim was for 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 conceived following a rape. 

The case was argued from the High Court all the way to the Supreme Court. The Supreme Court delivered judgement in March 2014 and found that the state was liable for the acts of its officers who failed to provide Mapingure with emergency contraception immediately following the rape and this in turn meant that there was failure to prevent the pregnancy. 

However, the Supreme Court dismissed the second claim. It found that the state was not liable for the failure to ensure a timeous termination of pregnancy. The Court found that the state was not liable to provide maintenance for the child.

 

2. Key issues for determination

    The Court noted two important enquiries to be made:

1. Whether or not there was negligence on the part of officials involved in the manner which they dealt with Mapingure’s predicament?

 

2. 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? 

 

3. Court found that there was negligence on the part of the doctor and the police for failure to ensure 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 failure to administer the contraceptive drug or 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.

 

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

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.

 

5. 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.”

 

6. The Court recognised the relevance of regional and international human rights norms and standards

The Court made key pronouncements as to the importance of international standards that protect a woman’s right to protect and control her biological integrity. The court clarified that these regional and international instruments cannot operate to override or modify domestic law. However, it was noted that it is 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. 

With respect to the rights of women and the special protection to women survivors of sexual and gender based violence, the Court noted the obligations arising from 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.

 

7. 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 advice given to Mapingure i.e 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 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.

 

8. 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 and hence dismissed Mapingure’s claim for damages for the maintenance of her minor child. 

 

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

 

4 April 2006       Mildred is raped during the course of a robbery at her home in the town of Chegutu. According to the Learned Judge of Appeal she reacted immediately and lodged a report with the police and ‘requested that she be taken to a doctor to be given medication to prevent pregnancy and any sexually transmitted infection.’  She was attended by a doctor that very day who treated her knee but declined to give medication for prevention of pregnancy on the basis that this could only be done in the presence of a police officer. Apparently the police, despite their much vaunted victim friendly system which apparently runs all the way from the police station to the court, thought nothing of letting this woman who had just been victim of rape and robbery go to 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 seventy-two hours.

 

5 April 2006       Mildred goes back to the police station only to be told that the investigating officer is unavailable. Clearly no other police officer could be bothered to assist. She goes to plead once more with the doctor who is adamant that it cannot be done in the absence of a police report. This of course is somewhat different from requiring the actual presence of a police officer.

 

7 April 2006       Mildred finally manages to get a police officer, not the investigating one. They go to the doctor only to be told that the seventy-two hour period has elapsed and the medication cannot now be administered.

 

5 May 2006       Mildred confirms that she is pregnant. Mildred indicates that she wants the pregnancy terminated and is advised by the police to approach the public prosecutor. The public prosecutor indicates that termination cannot be proceeded with before the trial is finished.

 

July 2006         Mildred, on the advice of the police, returns to the prosecution office and indicated that she requires a pregnancy termination order. The prosecutor consults a magistrate, instead of opening the statute book. The magistrate using common sense and without reference to the statute book also states that the termination order cannot be given before the trial is concluded.

30 September 2006  Mildred finally obtains a pregnancy termination order and with the same doggedness that she had exhibited thus far promptly attends at a hospital only to be told that the pregnancy is too far gone to be terminated.

 

24 December 2006  Mildred gives birth to the baby.

 

2007 Mildred sues the Minister of Home Affairs, the Minister of Health and Child Welfare and the Minister of Justice, Legal and Parliamentary Affairs. She claims damages in the sum of $10 000.00 for pain and suffering and maintenance for the minor child. One must remark at the amount of these damages. The State has probably paid more to its Advocate The damages claimed are certainly nowhere in the region of the hundreds of thousands of dollars that we are constantly reading about as being claimed as damages for defamation. This woman is now saddled with an unplanned for child and she only claimed $10 000.00. In my view she should have claimed more.

 

12 December 2012  The High Court declines to grant default judgment against the Defendants who had not even deigned to plead to Mildred’s claims. The High Court found that Mildred’s ‘misfortune was the result of her own ignorance as to the correct procedure to follow.’

 

2012  Mildred appeals to the Supreme Court. 

 

28 May 2013  The Supreme Court hears argument in the matter. By now the Respondents had armed themselves with a whole Advocate (male of course, there are only two female Advocates in the whole of Zimbabwe).

 

25 March 2014  Some ten months later the Supreme Court hands down judgment. By now the child born of Mildred has started school and is probably in grade two or three. Be that as it may the Supreme Court finds in favour of the Appellant as against the Minister of Home Affairs and the Minister of Health and Child Welfare for damages for any actionable harm sustained by Mildred. 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 are 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).’  Mildred’s ordeal is not over she has to go back to the High Court and prove her damages. So perhaps in another six years she will obtain justice.

The first question is how and why did the system fail Mildred? Clearly Mildred was not sitting back and sobbing her heart out. She is without a doubt 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 Mildred did. But clearly the police themselves do not know or do not care to follow religiously the practical steps necessary to assist a woman in Mildred’s position. Or perhaps it is merely symptomatic of the inefficiency that we have come to expect from many a state department.  When ordinary citizens hear that every police station has a Victim Friendly Unit geared to assist victims of sexual crime, they imagine that once a victim enters the portals of a police station, she will be supported by the procedures put in place to assist her and sympathetic police officers that will bend over backwards not to compound an already stressful situation. In this instance we find a lack of knowledge and sympathy at the police station. Mildred is sent to the doctor twice on her own. 

 

I try to imagine why this should be so and I can only conclude that it is because Mildred is possibly a black woman of no apparent means. I imagine that if Mildred had driven into the police station in a Jeep Cherokee or some such apparent show of wealth 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 and in particular poor women. Whilst Mildred 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. Mildred 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 lacks 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 finds it genesis in the patriarchal shroud that envelops women when it comes to their wombs. Women are not in charge of their wombs which are viewed 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 dealing with the right to life that an ‘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 therefore the Termination of Pregnancy Act (Chapter 15:10) is amended, there is nothing, to stop another woman finding herself in the same situation that Mildred did. It would of course be too radical and possibly unconstitutional to give women full control over their reproductive health and legalise abortion.

 

 

The next question is why did it take five years for an essentially undefended matter to be heard in the High Court? Clearly the lawyers representing Mildred can best answer this. But this lays bare the shameful and sluggish nature of the administration of justice system. Mildred Mapingure was represented by the Zimbabwe Women Lawyers Association. Many women fail to access legal advice because it is rather costly and organisations like ZWLA do not have the capacity to take 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 multi-currencies. All this takes time and energy.

 

It is noteworthy that even the Supreme Court itself took some ten 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 Mildred 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. In reality, however, members of the public often go to the prosecutor’s office for off the cuff advice which is usually related to some offence that will have been committed. For example, how do I get compensation for my cow that was stolen, can I sue civilly for damages, et cetera? The public relies on prosecutors to point them in the right direction. It is assumed that prosecutors are trained in law, which is not actually 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. Many law firms are concentrated in Harare and 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. Critically however 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 to not even have regard to 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 Mildred teaches us that until women are safe in the private and public domain, there is no guarantee that this will not happen again. It teaches us that justice takes an immeasurably long time to obtain and even then may remain elusive. It teaches that the patriarchal refusal of society to give women full reproductive choices and rights produces ugly scars in women and children’s lives. It teaches us to appreciate and salute all the Mildreds who have, despite obstacles at every turn, tenaciously clung to the mirage of a just society. We must also salute the Zimbabwe Women Lawyers Association for assisting women like Mildred to bring these ground breaking cases.

References:

1.Mildred Mapingure v Minister of Home Affairs and 2 Others SC 22/14

2.Constitution of Zimbabwe Amendment (No. 20) Act 1 of 2013

3.The Judicial Service (Code of Ethics) Regulations, 2012

Sarudzayi Njerere

(In my personal capacity)

Saridzai Njerere is a Legal Practitioner and a member of ZWLA