Friday, 15 November 2019

Zimbabwean Court RULES IN FAVOUR Of LGBT as Victim awarded $400 000

A transgender woman has won a landmark case against the Zimbabwean government after she was awarded $400 000 by the country’s High Court. 

This is the first case in which the country’s judiciary has recognised that gender does not have to be either male or female.

Bulawayo hairdresser Ricky Eugene Nathanson, 63, who identifies as female, was awarded the damages after she was arrested by a group of ant-riot police officers, detained for 48 hours and maliciously prosecuted. All this because she had used a ladies toilet in a bar.

Zimlive reports that Nathanson was arrested by six police officers in riot gear for using the ladies room on January 16, 2014. She then had to suffer the indignity of two forced anatomical examinations before she was charged with criminal nuisance and taken to the courts.

However, in 2017, Nathanson was acquitted of all charges after Bulawayo magistrate Abednico Ndebele ruled that it was not a criminal offence for a male to enter a ladies bathroom or vice versa.

After the acquittal, Nathanson filed a lawsuit in which she named as respondents, then Home Affairs Minister, Ignatius Chombo, then-Police Commissioner-General Augustine Chihuri, then Bulawayo Central Police commander Chief Inspector Enock Masimba and Farai Mteliso the man who had called the police.

Supreme Court judge Justice Francis Bere, who made the judgement when he was still at the High Court, issued a scathing indictment of the police’s conduct saying they had no right or cause to act in the manner they did. The judge also directed some of his wrath at the state prosecutors for maliciously prosecuting Nathanson.

In his judgement, Justice Bere said,

For three days, the plaintiff (Nathanson) in this case was not only deprived of her liberty but was subjected to forced anatomical examination in the crudest and naked manner by adventurous members of the police.
Zimbabwean Court RULES IN FAVOUR Of LGBT as Victim awarded $400 000

As if that was not enough, she was then subjected to further invasive examination by two doctors at two different medical institutions all because of her transgender status, something that she did not invite upon herself.

The legislature in its wisdom put a cap on the arrest of suspects and police officers are not expected to hysterically respond to calls of the arrest of suspects, but to satisfy themselves on reasonable grounds that the suspect has committed an offence before effecting the arrest.

One cannot avoid concluding that the conduct of the police in arresting and detaining the plaintiff was quite outrageous because clearly, they abused their discretion in arresting her. The prosecution of the plaintiff was both thoughtless and malicious.

Nathanson had initially demanded US$2.7 million from the government saying that the conduct of its agents had been “extremely abusive, malicious, indifferent and uncaring.” However, Justice Bere reduced the damages to ZW$400 000. He added,

The quantification of damages is not meant to enrich the victim, but to try and salvage some kind of dignity for the pain endured by the victim.

In the result, the judgment be and hereby granted in favour of the plaintiff against the defendants jointly and severally the one paying the others to be absolved. The defendants pay interest at the prescribed rate on the amount awarded from the date of judgment to date of payment in full.

Justice Bere also slapped the defendants with the cost of the lawsuit. No reason was given for the delay in releasing the judgement.

The verdict, in this case, is quite remarkable especially given the climate the lawsuit was prosecuted under. The case started under the tenure of the late former President Robert Mugabe who was an avowed homophobe who had no regard for the LGBTQ community. He is infamous for saying that gays are worse than dogs and pigs.

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