Termination of Pregnancy in Zimbabwe & Failure of the State: Reopening the case of Mildred Mapingure.
Over the last 24 months the Zimbabwean legislature has been making changes and implementing new laws to align with the 2013 Constitution. However, while developments in legislature are to the general benefit of the state and its citizens, it is of great concern to note that no developments have been made towards advancing sexual health reproductive rights of women in Zimbabwe. Sexual Health Reproductive Rights is one such area of law that has been given little to no attention and right at the tip of that iceberg is the topic regarding termination of pregnancy.
According to section 60 of the Zimbabwean Criminal Law and Codification Reform Act termination of pregnancy is unlawful and punishable by a sentence of up to five years. This is also outlined in section 48 (3) of the Zimbabwean Constitution which states that “An Act of Parliament must protect the lives of unborn children and that Act must provide that pregnancy may be terminated only in accordance with that law.” The only exceptions which allow a pregnancy to be terminated in Zimbabwe are outlined in Section 7 of the Termination of Pregnancy Act which states the three circumstances in which a termination may be lawfully performed and these are:
(a) where the continuation of the pregnancy so endangers the life of the woman concerned or so constitutes a serious threat of permanent impairment of her physical health that the termination of the pregnancy is necessary to ensure her life or physical health, as the case may be; or(b) where there is a serious risk that the child to be born will suffer from a physical or mental defect of such a nature that he will permanently be seriously handicapped; or(c) where there is a reasonable possibility that the foetus is conceived as a result of unlawful intercourse (such as rape and incest)
The processes outlined in the Act are long, strenuous and ultimately defeat justice failing those allowed by the Act, to lawfully terminate unwanted pregnancy. Lobbyists for this cause maintain that access to justice is for all, and special emphasis must be put to the neglect survivors of sexual assault have been subjected to. While Act purports to protect survivors of rape from unwanted pregnancy no measures have been put in place to ensure the timeous service delivery and access to justice in a substantive way. In cases of unlawful intercourse such as rape, a local Magistrate of where the termination would take place must issue a certificate certifying that the pregnancy was probably the result of unlawful intercourse as defined by the Act. Furthermore, the termination of such pregnancy may only be performed by a medical practitioner in an institution designated by the Ministry of Health with the written permission of the hospital superintendent or administration. The termination itself must be performed by two medical practitioners who are not from the same medical institution and who must certify that the requisite conditions exist. While the process should take no more than a few days survivors of rape all around Zimbabwe are being forced into childbirth and motherhood by beurocratic incompetence. Menial tasks are put off at various levels, until it becomes impossible for a termination to be performed. The case of one Mildred Mapingure is a true reflection of the fate that many women and girls in Zimbabwe experience:
On the 4th of April 2006, Mapingure was attacked and raped by robbers at her home in Chegutu, Zimbabwe. She immediately lodged a report with the police and requested that she be taken to a doctor in order to access medication to prevent pregnancy and any sexual infections. Mildred waited at the police station from 4am until midday the next day before ZRP took her to get medical attention. The reason for that was that there was apparently only one officer designated to deal with rape survivors and he had not come into work yet. And after that the doctor only treated her knee injury stating that he could only provide the medicine to prevent pregnancy and any sexual infections in the presence a police officer.
Mapingure repeatedly went to the police in the days that followed but was advised that the police officer mandated to deal with her case was not available.When she returned to hospital, the doctor insisted that she could only give her medication if a police report was provided. On 7 April, Mapingure was eventually accompanied to the hospital by another police officer but was informed that she could not receive the medication she had requested as the prescribed 72 hours within which the emergency contraception should be administered had elapsed.
On 5 May 2006, Mapingure’s pregnancy was formally confirmed. Upon discovering she was pregnant, Mapingure sought a lawful termination; as a victim of rape she is eligible for an abortion under Zimbabwe’s Termination of Pregnancy Act. A prosecutor and magistrate erroneously told her that she could not acquire the magisterial certificate required for termination until the rape tria l had been completed. When she eventually obtained a certificate of termination on 30 September, it was no longer safe to carry out the termination. Mildred gave birth on 24 December 2006.
Requirements of a lawful termination aside, the Act was implemented in 1977, and cannot be expected to realistically cater for social and techincal considerations that exist in 2019: The Act does not cater for other forms of penetration (artificial insemination, drugging, kidnapping) and other developed termination procedures administered by nurses, the evolution of societal values and gender transformative legislation. Substantive transformation requires legislation that mainstreams the lived experiences of all women in the state, and given that the United Nations has reported that over 70 000 women undergo unsafe termination every year, Justice demands provision be made. The Act gives institutional approval to the banning of termination. There is a systematic policing of women’s bodies that operates to cause more harm to their bodies and in their lives.
The Act falls short in outlining a timeous appeal in the event that the Magistrate has refused the certificate. There are no remedies for women coming low income households because the unlawful alternative is not available to them. Women across Zimbabwe have been forced to embrace their traumas because the violence in their realities is ignored through poor governance, selective application of the constitution and religion centered policy making. The Mapingure case clearly points to the urgent need to repeal the Termination of Pregnancy Act. Policy makers must adopt attitudes that only encourages pregnancy by choice and not by chance. Women must be allowed under all circumstances to decide whether or not they are ready for motherhood. Pro Lifers must confront their definition of LIFE and consider the quality of it economically and psychologically.
Although some people think that in the case of Mildred Mapingure was one of sweet victory considering that she successfully sued the ministries of Home Affairs and Health and Child Care to pay damages for their liabilities in failing to prevent a pregnancy emanating from her rape ordeal, one is of the opinion that the success of this case was of “kunyaradza mwana”, a Shona saying essentially meaning that it was a way of consoling her but at the same time keeping her and those concerned about this case quiet without questioning the long term effects of the ordeal that this innocent lady had to deal with in the future, i.e taking care of a child conceived as a result of a rape.
What has actually since happened is that Mildred has faced even more delays in receiving her any damages from the state at all. Years have passed and even if that money was to be paid today, it is worth nothing. She has had to raise her child without aid or reconciliation, and everyday the same is happening to another woman.
This Article was written with Michelle Bonzo Brings: Lawyer, Gender Activist. BA (Rhodes), LLB (Rhodes), MSC (WUZ).
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