Restoring Mai Mapingure's Equal Citizenship

Charles Ngwena (University of Pretoria), Rebecca J. Cook (University of Toronto), Restoring Mai Mapingure's Equal Citizenship (Frontiers of Gender Equality: Transnational Legal Perspectives, University of Pennsylvania Press, Rebecca J. Cook, ed.) (2023):

This chapter rewrites the judgment of the Supreme Court of Zimbabwe in the Mildred Mapingure v. Minister of Home Affairs et al. The authors, writing as judges, identify the gendered harms of Zimbabwe's Termination of Pregnancy Act of 1977 and its application to Mai Mapingure, a Zimbabwean woman denied an abortion to which she was legally entitled under the Act after being raped. Its criminal restrictions and procedures stereotype women as lacking agency. Its application is distorted by the gender biases of state officials, including doctors, policemen and judges. The Supreme Court blames Mai Mapingure, a poor woman, for not hiring a lawyer to negotiate the criminal justice system to access abortion services and fails to address the structural discrimination. The rewritten judgment explains how the 2013 Constitution's transformative vision requires the restoration of women's equal citizenship in all sectors, including the health sector. The judgment acknowledges the social subordination of pregnant women, and reasons that the discrimination is intersectional, with gender, pregnant status and poverty causally implicated. She is denied equal exercise of her rights to personal security, freedom from cruel treatment, conscience and health care in violation of Zimbabwe’s 2013 Constitution. The authors order remedies to restore Mai Mapingure's dignity and substantive equality. They award compensation for the rearing and educating her minor child. The 1977 Act is declared invalid. The state is ordered to investigate abuses against pregnant women, publish guidance to ensure transparent and dignified access to abortion care, and develop a national plan to transform the discriminatory health institutions and practices. Affirmative measures include gender-sensitive training, guidance for providers and the establishment of accountability mechanisms. The judgment aims to transform the circumstances causing violations through gender-specific remedies that acknowledge women's agency and equal citizenship. The rewritten decision shows how the application of substantive equality under Zimbabwe’s newest Constitution is necessary to remedy structural subordination of pregnant women in the health sector.