Zimbabwe Supreme Court: State hindered access to emergency contraception, but not abortion

Many thanks to our research assistant, Michelle Hayman, a second-year law student, for summarizing this case for Reprohealthlaw subscribers.

Mildred Mapingure v Minister of Home Affairs, No. SC 22/14, 25 March 2014, Supreme Court of Zimbabwe , decision online.

Mildred Mapingure brought claim against the state for damages for physical and mental pain and for maintenance in respect of her child after a series of bureaucratic hurdles stopped her from preventing or terminating her pregnancy caused by rape.

The Supreme Court held that the state was liable for the negligence of the doctor and police officers whose actions prevented Mapingure from accessing emergency contraceptive treatment following her immediate report of the rape and request for treatment.

However, the Court dismissed Mapingure’s claim that the state was liable for the failure to terminate the pregnancy. Patel JA held that according to the Termination of Pregnancy Act, it was the appellant’s responsibility to institute the proceedings for the issuance of a magisterial certificate to allow for the termination of her pregnancy and dismissed her claim that she was following the incorrect advice of state officials. Following this, Patel JA remitted the claim for damages for pain and suffering to the court to determine the appropriate amount of compensation, but dismissed the claim for damages for the maintenance of her child.

The case has received mixed reception among women’s rights organizations. Some have applauded the Supreme Court’s recognition of the state’s failure to provide access to emergency contraceptives as an actionable wrong and for Patel JA’s discussion of Zimbabwe’s international obligations to support the rights of women. Others have criticized the decision for failing to find negligence on the part of the state in impeding termination of the pregnancy, despite the Court’s criticism of the wording of the Act as “ineptly framed” and “lacking sufficient clarity” (28).

Full text of the case is online here.

Detailed case analysis by Godfrey Kangaude and Rudo Chigudu for  Legal Grounds III:  Reproductive and Sexual Rights in Sub-Saharan African Courts, forthcoming 2016.
For summaries of older African cases, see:  Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Courts, Volumes I and II
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