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Supreme Court of Zimbabwe holds Government liable for failure to provide rape victim with emergency contraception and awards her compensation

Supreme Court of Zimbabwe holds Government liable for failure to provide rape victim with emergency contraception and awards her compensation

Mildred Mapingure v  Minister of Home Affairs & 2 Others

Supreme Court of Zimbabwe

Before: Garwe JA, Gowora JA & Patel JA

Harare

March 25, 2014

Reported By Linda Awuor& Diana O. Kerubo

Brief Facts

On 4 April 2006, the appellant was attacked and raped by robbers at her home in Chegutu. She immediately 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. Later that day, she was taken to hospital and attended to by a doctor who only treated her injured knee saying that he could only attend to her request for preventive medication in the presence of a police officer.

He further indicated that the medication had to be administered within 72 hours of the sexual intercourse having occurred. She duly went to the police station the following day and was advised that the officer who dealt with her case was not available. She then returned to the hospital, but the doctor insisted that he could only treat her if a police report was made available.

On 7 April 2006, she attended the hospital with another police officer. At that stage, the doctor informed her that he could not treat her as the prescribed seventy two (72) hours had already lapsed. Eventually, on 5 May 2006, the appellant‘s pregnancy was formally confirmed.

Thereafter, the appellant went to see the investigating police officer who referred her to a public prosecutor. She indicated that she wanted her pregnancy terminated, but was told that she had to wait until the rape trial had been completed. In July 2006, acting on the direction of the police, she returned to the prosecution office and was advised that she required a pregnancy termination order. The prosecutor in question then consulted a magistrate who stated that he could not assist because the rape trial had not been completed. She finally obtained the necessary magisterial certificate on 30 September 2006. By that stage, the hospital matron who was assigned to carry out the termination felt that it was no longer safe to carry out the procedure and declined to do so.Eventually, after the full term of her pregnancy, the appellant gave birth to her child on 24 December 2006.

Issues:

  1. Whether the respondents employees were negligent in the manner in which they dealt with the appellant‘s predicament.
  2. Whether any actionable harm was suffered as a result of the negligence.
  3. Whether the respondents were liable to the appellant in damages for pain and suffering and for the maintenance of her child.
  4. Whether the responsibility for instituting proceedings under Section 5(4)(a)(i),(ii) of the Termination of Pregnancy Act in the Magistrates Court lay with the relevant authorities or the victim of the alleged unlawful intercourse.

Tort Law-professional negligence-duty of care-breach of duty of care-Whether the respondents ‘employees were negligent in the manner in which they dealt with the appellant‘s predicament.

Tort Law-professional negligence-duty of care-breach of duty of care-loss suffered as a result of breach of duty of care-Whether the appellant suffered any actionable harm as a result of the negligence.

Termination of Pregnancy Act Cap15:10

Section 2 defines unlawful intercourse to mean

rape, other than rape within a marriage, and sexual intercourse within a prohibited degree of relationship, other than sexual intercourse with a person referred to in para (i) or (j) of subsection (1) of section 75 of the Criminal Code

Section 4

Subject to this Act, a pregnancy may be terminated—

  1. 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
  2. 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
  3. where there is a reasonable possibility that the foetus is conceived as a result of unlawful intercourse.

Section 5

  1. Subject to section seven, a pregnancy may only be terminated by a medical practitioner in a designated institution with the permission in writing of the superintendent thereof.
  2. In the case of the termination of a pregnancy on the grounds referred to in paragraph (c) of section four, the superintendent shall give the permission referred to in subsection (1) on the production to him of the appropriate certificate in terms of subsection (4).
  3. A pregnancy may only be terminated on the grounds referred to in paragraph (c) of section four by a medical practitioner after a certificate has been issued by a magistrate of a court in the jurisdiction of which the pregnancy is terminated to the effect that –
  4. he has satisfied himself –
  5. that a complaint relating to the alleged unlawful intercourse in question has been lodged with the authorities; and
  6. after an examination of any relevant documents submitted to him by the authorities and after such interrogation of the woman concerned or any other person as he may consider necessary, that, on a balance of probabilities, unlawful intercourse with the woman concerned has taken place and there is a reasonable possibility that the pregnancy is the result of such intercourse; and
  7.  in the case of the alleged incest, that the woman concerned is related within the prohibited degree to the person with whom she is alleged to have had incest; and
  8. in the case of alleged rape or incest, the woman concerned has alleged in an affidavit submitted to the magistrate or in a statement made under oath to the magistrate that the pregnancy could be the result of that rape or incest, as the case may be.

Constitution of Zimbawe,2013

Section 327(2)(b)- International conventions, treaties and agreements

It provides that an international treaty which has been concluded or executed by the President or under the President’s authority does not form part of the law of Zimbabwe unless it has been incorporated into the law through an Act of Parliament.

Convention on the Elimination of All Forms of Discrimination against Women1979.

Article 16.1(e ) guarantees the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.

United Nations Declaration on the Elimination of Violence against Women

Article 4(d),(g)

It calls upon States to pursue a policy of eliminating violence against women. To this end, women who are subjected to violence ―should be provided with access to the mechanisms of justice and just and effective remedies for the harm that they have suffered‖ as well as information on ―their rights in seeking redress through such mechanismunder paragraph (d). Furthermore, States should ensure that female victims of violence have specialised assistance, such as rehabilitation, assistance in child care and maintenance, treatment, counselling, and health and social servicesunder paragraph (g)).

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2003

Article 4.2(f)

It enjoins States Parties to take appropriate and effective measures to ―establish mechanisms and accessible services for effective information, rehabilitation and reparation for victims of violence against women.

Article 14-Health and Reproductive Rights

States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted. This includes:the right to control their fertility;the right to decide whether to have children, the number of children and the spacing of children;the right to choose any method of contraception;the right to self-protection and to be protected against sexually transmitted infections, including HIV/AIDS;the right to be informed on one’s health status and on the health status of one’s partner, particularly if affected with sexually transmitted infections, including HIV/AIDS, in accordance with internationally recognized standards and best practices;the right to have family planning education.

Article 14.2(c)

States Parties must take all appropriate measures to ―protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest.

Held:

  1. The principles of aquilian liability for medical negligence were summarized in the Edouard and Murkheiber cases[Administrator Natal v Edouard ]

and [Mukheiber v Raath& Anor] both of which arose in the specific context of unwanted pregnancies. The test for professional negligence as was provided in the Murkheiber case for the purposes of liability culpa arose if:

  1. a reasonable person in the position of the defendant-
  2. would have foreseen harm of the general kind that actually occurred;
  3. would have foreseen the general kind of causal consequence by which that harm occurred;
  4. would have taken steps to guard against it; and
  5. the defendant failed to take those steps.
  6. With respect to the liability of the police, in the context of their prescribed functions and duties, the opinion in the Ewels case [South African case of Minister of Police v Ewels ] was particularly instructive. It provided that there was no general legal duty on a person to prevent harm to another, even if such person could easily prevent such harm, and even if one could expect, on purely moral grounds, that such person act positively to prevent damage. However, it was accepted that in certain circumstances there was a legal duty on a person to prevent harm to another and if he failed to comply with that duty, there was an unlawful omission which could give rise to a claim for damages.
  7. An omission was regarded as unlawful conduct when the circumstances of the case were such that the omission not only occasioned moral indignation but where the legal convictions of the community required that the omission be regarded as unlawful and that the loss suffered be compensated by the person who failed to act positively. When determining unlawfulness, one was not concerned with the customary negligence of the bonus paterfamilias, but with the question whether, all facts considered, there was a legal duty to act reasonably.
  8. The duty of the police could not be confined to their statutorily prescribed functions. In the specific circumstances of any given case, it would be legally incumbent upon them to act outside and beyond their ordinary mandate, so as to aid and assist citizens in need, in matters unrelated to the detection or prevention of crime. Consequently, where such a legal duty was found to exist, and harm that was foreseeable eventuated from the failure to prevent it, the victim of that harm would be entitled to pursue and obtain appropriate compensation through a claim for damages, having regard in every case to considerations of public policy.
  9. In strict constitutional terms, the prescriptions of international instruments could not operate to override or modify domestic law unless and until they were internalized and transformed into rules of domestic law. This principle of the common law was expressly codified in Section 111B (1) (b) of the former Zimbabwe Constitution and was now reaffirmed in Section 327 (2) (b) of the new Zimbabwe Constitution, 2013. Nevertheless, it was proper and necessary for national courts, as part of the judicial process, to have regard to the country‘s international obligations, whether or not they had been incorporated into domestic law. In the instant case, there were several internationally recognised norms that had a direct bearing on the issues.Though they had not been specifically domesticated,it was proper and instructive to have regard to them as embodying norms of great persuasive value in the interpretation and application of the statutes and the common law.
  10. As a general rule, the mandate of the police was to prevent the commission of crimes and to bring to book the perpetrators of crime. Their functions in cases involving rape would not ordinarily extend to the prevention of potential pregnancy or the provision of assistance in that process. Inaction of the police in the instant case could not be treated in isolation. It ought to have been seen in conjunction with the conduct of the doctor who treated the appellant after she was raped. The doctor declined to administer the preventive medication requested by the appellant without a police report. However, there was nothing in the record to show why the doctor insisted on a police report or why he regarded the period of 72 hours as being critical. No plea filed of record or any other evidence was provided to explain or support the position adopted by the doctor.
  11. There was a professional relationship between the appellant and the doctor. The nature of his duties required that he attended to all the physical injuries arising from the sexual assault inflicted upon her. Consequently, as was postulated in Mukheiber’s case, the doctor was under a special duty to be careful and accurate in everything that he did and said pertaining to his relationship with the appellant. It behoved him to exercise that level of skill and diligence possessed and exercised at the time by the members of his profession. A reasonable person in the position of the doctor would have foreseen that his failure to administer the contraceptive drug, or his failure to advise the appellant on the alternative means of accessing that drug, would probably result in her falling pregnant. He should have taken reasonable steps to guard against that probability.
  12. The police failed to compile the requisite report or to accompany the appellant to the doctor despite several spirited efforts by her to obtain their assistance. The police were very alive to the appellant‘s predicament but neglected to comply with her entreaties for various administrative reasons that were not entirely clear.These circumstances were such as to create a legal duty on the part of the police to assist the appellant in her efforts to prevent her pregnancy. They failed to comply with that duty. Their inaction amounted to unlawful conduct by reason of their omission to act positively in the circumstances before them. They were under a legal duty to act reasonably and they dismally failed to do so.
  13. The provisions under the Termination of Pregnancy Act required permission by the superintendent of a designated institution for the termination of pregnancy pursuant to unlawful intercourse. The precondition for that permission was the production of a certificate from a magistrate within the same jurisdiction.The issuance of a magisterial certificate was preceded by a complaint having been lodged with the authorities and the submission of relevant documents by those authorities. The term authoritieswas not defined in the Act but, in the context of unlawful intercourse, i.e. rape or incest, it would ordinarily apply to mean the police authorities. The victim of the alleged rape ought to have deposed to an affidavit or make a statement under oath in addition to being present for possible interrogation by the magistrate.
  14. It was the responsibility of the victim of the alleged rape to institute proceedings for the issuance of a magisterial certificate allowing the termination of her pregnancy in terms of Section 5 (4). The role of the police and the prosecutor, upon request by the victim or in response to a directive by the magistrate, was to compile the relevant report and documentation pertaining to the rape for submission to the magistrate. The role of the magistrate was to issue the requisite certificate upon being duly satisfied in terms of Section 5 (4), while that of the superintendent of the designated institution was to authorize its medical practitioner, upon production of the certificate, to terminate the unwanted pregnancy. It would also be necessary, where appropriate, for thefunctionaries to give accurate information and advice, within the purview of their respective functions, to enable the victim to terminate her pregnancy. But thatwas as far as one could take the responsibilities and duties of the relevant authorities.
  15. The duty of the prosecutors and magistrate to act reasonably in the performance of their functions 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 elsewhere, preferably from a lawyer in private or paralegal practice, as soon as possible after she became aware of her pregnancy in May 2006. It followed that the prosecutors and magistrate could not be held liable for failing to take such reasonable steps as would have been necessary for the issuance of the requisite certificate. It also followed that it was the appellant‘s own failure to institute the necessary application that resulted in the inability to have her pregnancy timeously terminated. Consequently, her claim founded on the failure to terminate her pregnancy ought to have failed as against all three respondents.
  16. With regard to the claim for damages for pain and suffering and maintenance, having regard to the broad principles of delictual liability, there was no conceptual limitation to allowing a claim in general damages for foreseeable harm that eventuated from an unwanted pregnancy. Such a pregnancy could, depending on the circumstances of its occurrence, constitute actionable harm. Accordingly, the appellant was entitled to prove general damages arising from the failure to prevent her pregnancy. Similarly, there could be no objection in principle to a claim for delictual damages flowing from an unwanted pregnancy. This would apply not only to the costs of confinement and the physical pain of delivery but also to the expense of maintaining the child until it became self-supporting. However, because the responsibility for taking steps to terminate her pregnancy fell squarely upon the appellant’s shoulders and the capacity to do so also lay within her hands, the respondents could not be called to account for any subsequent pain and suffering endured by the appellant, whether arising from her continued pregnancy or the delivery of her child or the period thereafter. The appellant’s claim for damages ought to be limited to the period between the date of her rape and the date of confirmation of her pregnancy.

Orders

  1. The appeal was partially allowed to the extent that the dismissal of the appellant‘s claim for damages for pain and suffering, arose from the failure to prevent her pregnancy and was set aside.
  2. The claim for damages for pain and suffering was remitted to the court a quo for the grant of default judgment, in such amount as the court would assess and determine after due inquiry, together with the question of costs.
  3. The dismissal of the appellant‘s claim for damages for the maintenance of her minor child was confirmed and upheld.
  4. No order as to costs.

Relevance to Kenya

Constitution of Kenya

Article 43(1)(a)-Economic and Social Rights.

It provides that everyone has a right to the highest attainable standard of health, which includes that right to health care services, including reproductive health care.

Further Article 43(2) provides that a person shall not be denied emergency medical treatment.

Currently there are a number of statutes that regulate the medical profession.These statutes have created bodies that ensure that the public is protected by ensuring that medical practitioners are qualified to perform their duties with skill and diligence failure of which amounts to professional misconduct.

    1. Medical Practitioners and Dentists Act.

This Act has constituted the Medical Practitioners and Dentists Board. The Act has also set regulations to govern the conduct of disciplinary proceedings -The Medical Practitioners and Dentists (Disciplinary proceedings)(procedure)(Amendment) Rules 2013.The Committee cannot award compensation to the aggrieved party. Compensation can only be granted by the court.

  • Nurses Act Section 18A(1)(f)(g)  provides that a registered nurse shall be culpable of professional misconduct if such nursefails- to observe and apply professional, technical, ethical or other standards prescribed by the Council as guidelines for practice by registered nurses;is guilty of gross negligence in the conduct of his professional duties.
  • Clinical Officers (Training, Registration and Licensing) Act. Pursuant to Section 15, clinical officers are obliged to observe the Code of Professional Conduct and Discipline issued by the Medical Practitioners and Dentists Board under the Medical Practitioners and Dentists Act (Cap. 253).

    Section 15(2) of the Act provides thatthe Council may, after inquiry, cancel the registration and licence of any clinical officer, if he is found guilty of any infamous or disgraceful conduct in a professional respect, or if he is convicted of conduct in any criminal offence under this Act or any other written law, which in the opinion of the Council amounts to disgraceful conduct in a professional respect.

    Medical practitioners are also bound by prescriptions under International instruments which emphasize on the need to adhere to international ethically accepted standards in relation to health and medical practice.

    Article 4.2(f) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2003 enjoins States Parties to take appropriate and effective measures to ―establish mechanisms and accessible services for effective information, rehabilitation and reparation for victims of violence against women.

    This case can be instructive in determination of professional negligence suits especially against medical practitioners and police and ensure reparation to the victims especially of rape.

    Reproductive Health.

    The Reproductive Health Care Bill, 2014 suggestsproviding for the recognition of reproductive rights; to set the standards of reproductive health and provide for the right to make decisions regarding reproduction free from discrimination coercion and violence.

    It guarantees access to contraception and family planning services, including contraceptive options, counseling, information and education.

    Abortion

    Zimbabwe.

    Termination of Pregnancy Act Cap15:10

    Section 4(c) provides for termination of pregnancy where there is a reasonable possibility that the foetus is conceived as a result of unlawful intercourse.

    Termination is not just restricted to instances of danger to the health of the mother but also covers situations where there is a serious risk that the child to be born will suffer from a physical or mental defect of a nature that he will permanently be seriously handicapped and pregnancy as a result of unlawful intercourse i.e rape

    Unlike Zimbabwe, Kenyan law does not envisage termination of pregnancy as a result of rape and risk of the child suffering from mental or physical defects.

    Kenya unlike Zimbabwe under Section 5 of the Termination of Pregnancy Act has no legislation setting out the procedure granting authority to a medical practitioner to terminate pregnancy. It instead leaves the judgment(whether to terminate or not) to the medical practitioner.

    Article 26(4) Constitution of Kenya

    Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

    The Reproductive Health Care Bill, 2014under Section 19 envisages instances when an abortion can be procured: if a trained health professional, after consultation with the pregnant woman, is of the opinion that the continued pregnancy would endanger the health of the mother; or as a result of the pregnancy the life or health of the mother is in danger.

    Police

    The eighth schedule of the National Police Service Act makes an officer liable for duties performed negligently.

 

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