The Zimbabwean judicial system has in several instances been described as flawed and ambiguous. Laymen and legal persons alike have often failed to interpret and comprehend the law, which continues to have negative implications on human rights. Legal practitioners and gender activists have also described the system as pro-patriarchy as it often compromises the rights of women seeking justice and protection.
The case of Mildred Mapingure is a prime example of how tedious and time-consuming the Zimbabwean justice system often is.
Early last year, the Supreme Court ruled in Mapingure’s favour in a case where she sued the Ministry of Home Affairs, Ministry of Health and Child Welfare and the Ministry of Justice, Legal and Parliamentary Affairs for damages to the sum of US$10 000.00. The damages are for pain and suffering she endured while trying to access pregnancy prevention services after she had been raped. The court however ruled against her claim of US$41 904 for the maintenance of the child. Mapingure was referred to the High Court for the actual amount of damages due to her.
Mildred Mapingure: A miscarriage of law
On April 4 2006, Mapingure was gang raped in Chegutu. Mapingure immediately reported the matter to the police and asked to see a doctor for her to access pregnancy prevention prophylaxes, only to be told that this could only be done in the presence of the presiding police officer. For the next three days, Mapingure was to go back and forth between the police station and the hospital in an attempt to access the needed medical attention.
Mapingure returned to the police station and was told the presiding officer was absent. A day later, she went back to the doctor only to hear of a new requirement; a police report. In its ruling, the court pointed out that the doctor could have instead told Mapingure of alternative means by which she could access pregnancy prevention medication. The court also found the police guilty of failing to provide a comprehensive report for Mapingure to get assistance from the doctor.
In May of that year, Mapingure confirmed that she was pregnant and sought permission to terminate the pregnancy as provided for in the Termination of Pregnancy Act (ToPAct). Again, the justice system failed her as she was told that she could only obtain the pregnancy termination order after her rape trial had ended. As such, Mapingure only received the document permitting the termination in September of 2006, at which point her pregnancy was too advanced for her to terminate.
Her persistence in challenging the state led to a groundbreaking ruling by the Supreme Court which granted her claim to damages.
Late last year, Her Zimbabwe facilitated a Zimbabwe Women Lawyers Association (ZWLA) public lecture whose objectives were to critique the Termination of Pregnancy Act, the procedure to be followed for one to terminate pregnancy and the performance of the personnel in the justice delivery system. The discussion was led by four panelists, namely legal expert, Professor Geoff Feltoe, legal practitioner, Sarudzayi Njerere, ZWLA Board Chairperson, Sara Moyo and Jimmy Wilford from Students and Youth Working on Reproductive Health Action Team (SAYWHAT).
During the session, Wilford highlighted that many Zimbabweans are not aware of the conditions under which one is allowed to terminate a pregnancy. The Act allows a woman to terminate a pregnancy where its continuation endangers her life or if the pregnancy may lead to a permanent impairment on her physical health.
Similarly, when there is evidence that the child to be born is at risk of a physical or mental defect that may lead to its permanent handicap the woman is also allowed to terminate the pregnancy. One can also terminate a pregnancy on the grounds that it was a result of unlawful intercourse. According to the Act unlawful intercourse refers to rape or incest.
Wilford also mentioned that cultural and moral values are often placed ahead of a woman’s rights to her body and that most women believe that termination of pregnancy is murder and as such, is not permissible.
Speaking at the same event last year, Professor Feltoe suggested that the law should be revised to include marital rape as one of the conditions under which one can legally terminate pregnancy. He added that girls under 16 should be accommodated by this Act if they fall pregnant under the stated conditions.
He also recommended that midwives and nurses, need to be trained on how to perform pregnancy termination. This would limit inconveniences if a doctor is absent from the medical facility where any woman decides to consult.
Rape services lacking across Zimbabwe
Unfortunately, Mapingure is just one of the many victims of the inefficiencies and irregularities in Zimbabwe’s justice system.
As such, it is important to take stock of the facilities available for reporting rape. Harare, with a population of over 1.4 million, has just one functional Adult Rape Clinic which operates on week days during normal working hours on weekdays only. So what then happens to those who are raped over the weekend? And even if the clinic operated for 24 hours daily, it still would not be adequate for Harare alone.
The Zimbabwe Republic Police report that each of their stations in the capital has a Victim Friendly Unit (VFU), meaning that rape survivors can quickly be assisted at the nearest station provided that all the units are fully functional. But currently, a rape survivor is expected to submit an affidavit before the magistrate or make a statement under oath stating that she has been raped.
As in the case of Mapingure, it is clear that the system is not always as effective as it needs to be with such time-sensitive matters. So what more can be expected in rural areas, where it is rarer to find a legal office? Are women in these areas even aware of legal provisions in the case of rape?
It may then be necessary to eliminate the need for a court order as a requirement for one to be permitted to lawfully terminate a pregnancy since it can only be issued by a magistrate whom, for different reasons which may also include personal bias against termination of a pregnancy, may fail to do so within 72 hours.
Another thing to reflect on is the fact that the Termination of Pregnancy Act is now 38 years old. In that time, it has gone through a total of six amendments. But still, procedures to be followed remain unclear.
As such, we continue to fail hopelessly to serve our country’s women.
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