Zimbabwe: High Court upholds Transgender persons’ constitutional rights

Many thanks to Keikantse Phele, a Botswana based Human Rights lawyer and LL.M. graduate in Sexual and Reproductive Rights in Africa, at the Centre for Human Rights of the University of Pretoria’s Faculty of Law. Her summary and analysis of this pioneering decision has just been published among the online updates to co-published third volume of case summaries, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts. We are pleased to circulate brief excerpts:

Ricky Nathanson v Farai Mteliso, The Officer in Charge Bulawayo Central Police Station, Commissioner of Police and the Minister of Home Affairs, Case no.HB 176/19 HC 1873/14 [2019] ZWBHC 135( (14 November 2019);  (Zimbabwe, High Court) Decision online.   Case Summary by Keikantse Phele (download PDF).

COURT HOLDING: The Plaintiff, a transgender woman, was awarded damages of 400,000 ZWD, for unlawful and malicious arrest during which she was subjected to inhuman and degrading treatment, which violated her fundamental and constitutional rights.

SIGNIFICANCE: After summarizing the facts of the Plaintiff’s ordeal and the Court’s analysis of violated constitutional rights, human rights lawyer Keikantse Phele concludes that “Overall, the case contributes to the gradual progress and improvement of transgender persons’ rights in the African continent.” “The Zimbabwean High Court,” she writes, “should be commended for taking the Plaintiff’s civil suit as an opportunity to pronounce that the rights of transgender persons are protected by the Constitution and that their individuality must be respected. Thus, the Court warned and cautioned transphobic citizens of the consequences of discriminating against transgender people in Zimbabwe. The decision sets an important precedent for transgender rights in Zimbabwe and also in the African region, affirming that Courts are ready to protect human rights of every individual, without discrimination, using domestic, regional and international law. . . .” (p. 8)

This decision sets a good precedent not only for LGBTQI people in Zimbabwe but also in Southern Africa for LGBTQI persons in asserting their fundamental human rights in courts. It is a persuasive authority that can be used as an advocacy tool to pursue policy and law reform for transgender persons in other countries. The Court in this case buttresses the individuality and the constitutional rights of transgender persons in Zimbabwe, and provides needed jurisprudence in protecting and promoting transgender rights.” (p. 8)

The Court’s full decision (43 pages) is online here. 
Keikantse Phele’s Case Summary (8 pages downloads here (PDF).

RELEVANT RESOURCES:

Transsexuality:  Legal and Ethical Challenges,” by Bernard M. Dickens.  International Journal of Gynecology and Obstetrics 151.1 (October, 2020): 163-167 : PDF free access for 12 months.  Submitted Text at SSRN.

Baby “A” (suing through her mother, E.A.) and  The Cradle the Children Foundation v Attorney General, Kenyatta National Hospital, and the Registrar of Births and Deaths [2014] eKLR, Petition No. 266 of 2013 (High Court of Kenya at Nairobi, Constitutional and Human Rights Division). [Kenyan Court recognizes need to protect the constitutional rights of intersex persons]  Decision online. Case summary in Legal Grounds downloads here (PDF).

Republic v Kenya National Examinations Council & Another [2014] eKLR, JR Case No. 147 of 2013 (High Court of Kenya at Nairobi) [Kenyan Court ordered name and gender change on high school diploma]  Decision online Case summary in Legal Grounds downloads here (PDF) .

Legal Grounds III: Reproductive and Sexual Health in Sub-Saharan African Courts contains summaries and comments on 60+ court decisions, 2008-present
Online edition with updates and links to decisions.
Published books – free PDF downloads: Legal Grounds I (2005), Legal Grounds II (2008), Legal Grounds III (2017).
______________
Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our PublicationsResearch resources, and Reprohealthlaw Commentaries SeriesTO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

Comments are closed.

%d bloggers like this: