On 4 April 2006, Mildred Mapingure (“Appellant”), was attacked and raped by robbers in her home. She immediately reported the incident to the police and requested that they take her to a doctor to receive emergency contraception and medication to prevent sexually transmitted infections. When she went to the hospital, the doctor informed her that he could only administer emergency contraception in the presence of a police officer, and that the medication had to be administered within 72 hours of sexual intercourse. When Appellant went to the police station to fulfill the requirement, she was informed that the officer presiding on her case was not available. She then returned to the hospital, but the doctor insisted that he could only treat her if she could present a police report. On 7 April 2006, she went to the hospital with another police officer. By that time, the health professional informed her that he could not treat her because the 72 hour window had elapsed.  Appellant was confirmed pregnant on 5 May 2006.

Appellant then consulted with the investigating police officer who referred her to a prosecutor. She asked the prosecutor for the required forms to terminate her pregnancy, but was informed that she could not submit a request until the conclusion of the rape trial.

In July 2006, acting on advice from the police, Appellant returned to the prosecutor to request an abortion. However the prosecutor told her that she needed a certificate from a magistrate to complete the request. The prosecutor then consulted a magistrate who stated that he could not grant the order until the conclusion of the rape trial. Appellant finally obtained the necessary certificate on 30 September 2006.  However, despite fulfilling all the necessary requirements, the hospital refused to provide an abortion to Appellant because they thought that it was no longer safe to perform the procedure. Appellant gave birth to her child on 24 December 2006.

Appellant brought an action against the Ministers of Health, Justice, and Home Affairs for pain and suffering and the maintenance of the child. She argued that the respondents negligently failed to prevent the pregnancy and to subsequently provide abortion services to which Appellant was legally entitled.

The lower court dismissed her claim, holding that the respondents were neither directly nor vicariously liable because governmental officials did not have a duty to amend her ignorance of the proper administrative procedures required for an abortion. The lower court specifically noted that Appellant failed to submit an affidavit to the magistrate, which would initiate the proceedings for the necessary certificate. Appellant appealed the decision to the Supreme Court.

This case demonstrates the substantial administrative barriers that can prevent access to abortion services for women who are legally entitled to access under domestic law. Mapingure attempted to utilize the administrative channels that were established to enable women in her circumstances to access an abortion, and yet she encountered opposition and challenges at every stage of the process. Although Zimbabwe has relatively progressive policies and laws on reproductive health, the services were simply not available or were inaccessible for Mapingure.   Despite the considerable evidence, the Court neglected to view this case as indicative of a greater systemic problem of administrative barriers, and instead chose to apply a negligence test from a different country. Since the Court determined this case based on negligence rather than human rights norms, it refused the opportunity to interpret and apply international human rights norms on reproductive rights to domestic laws and policies.

It is unclear from the decision whether domestic law requires a police officer’s presence whenever a doctor administers emergency contraception in the event of rape. The Court simply assumed the legality of this practice when it applied the negligence test to the doctor and police officers. In doing so, the Court neglected to acknowledge that the confusion around this supposed requirement was the first barrier that prevented Mapingure from taking control of her reproductive freedom after experiencing sexual violence.

Mapingure encountered a second barrier when she attempted to access an abortion on the grounds of rape, as authorized under Section 4(b) of the Termination of Pregnancy Act. However, although Section 4 allows abortion in cases of rape, it stipulates several sequential requirements that must be fulfilled before one can access abortion services. First, the survivor must file a police report about the alleged rape. Then, a magistrate must issue a certificate stating that after consideration of the ‘balance of probabilities’ unlawful sexual intercourse occurred and resulted in the pregnancy. Finally the survivor must present the certificate to and obtain written permission from the superintendent of the institution where the abortion will occur. Mapingure was clearly not aware of the specifics of these requirements, and the prosecutor’s office misled her to believe that the rape trial had to be completed prior to filing for the magisterial certificate. Consequently, she was farther along in her pregnancy when she finally obtained the certificate and the hospital refused to perform the termination.

According to the Court, Mapingure was to blame for not knowing the exact language of the law, and for trusting that the authorities were telling her the correct information about the relevant administrative procedures. The Court also held that while the absence of a procedural guide on obtaining abortion access, Mapingure had full responsibility to terminate her pregnancy.