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.
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
(In my personal capacity)
Saridzai Njerere is a Legal Practitioner and a member of ZWLA