CHAPTER 18- THE RIGHT TO SECURITY OF THE PERSON

SECURITY OF THE PERSON

Security of the person relates, for instance, to all forms of clinical intervention or all acts
which result in physical or mental or psychological injury. The right to security of the person
is manifested in the injunctions against torture, cruel, inhuman, or degrading treatment or
punishment, and subjecting someone to medical experimentation without his or her free
consent.1The right to security of the person also raises the questions whether a person has the
autonomy to refuse life-prolonging or life-saving medical treatment or whether a womans
autonomous decision to have an abortion (thereby doing with her body as she pleases
should be paramount consideration in procuring an abortion. This right is enshrined in
Section 52 of the Constitution of Zimbabwe, wherein it is stipulated that,
Every person has the right to bodily and psychological integrity, which includes the right,
(a) To freedom from all forms of violence from public or private sources;
(b) Subject to any other provision of this Constitution, to make decisions concerning
reproduction;
(c) Not to be subjected to medical or scientific experiments, or to the extraction or use of their
bodily tissue, without their informed consent.

Article 3 of the Universal Declaration of Human Rights states that everyone has the right to
life, liberty and security of the person.2 Be that as it may, sight should not be lost to the fact
that, the right to personal security of the person in section 52 can be suspended in
consequence of the declaration of a state of emergency, but then only to the extent necessary

1 See art 7 of the International Covenant, which actually brands such experimentation as cruel,
inhuman or degrading treatment.
2 In the African Charter on Human and Peoples Rights, it is stated in Art 4 that every human being
shall be entitled to respect for his life and integrity of his person, while the rights to liberty and
security of the person are enshrined separately in Art 6. The International Covenant on Civil and
Political rights deals with the rights to life and liberty and security of the person as well as freedom
from torture or cruel, inhuman, or degrading treatment or punishment in three separate articles (Arts
6, 9 and 7 respectively). The European Convention on Human Rights follows the same pattern (in
Articles 2, 5 and 3 respectively).

to restore peace and order.3 Section 86 therefore stipulates eminently strict conditions under
which people can be detained during a state of emergency.4
FREEDOM FROM VIOLENCE
1.2 RIGHTS OR FREEDOM FALLING WITHIN THE AMBIT OF SECURITY OF
THE PERSON.
(a)FREEDOM FROM VIOLENCE FROM PRIVATE OR PUBLIC SOURCES.
The term violence has been defined by some commentators as a grave invasion of personal
security.5The prohibition of all forms of violence from either public or private sources 6 was
included in order to focus attention on the use of force by state organs and in private relations
by private persons (in a family context, for example). It clearly indicates that the right to
bodily and psychological integrity applies to private persons. As in the case of other rights,
the state has a positive duty to protect this right by creating appropriate crimes and delicts and
by providing for their effective prosecution and remedies.7 It can be noted that section 12(1)
(c) draws its inspiration from art 5 of the Convention on the Elimination of All Forms of
Racial Discrimination (CERD). Article 5 imposes duties on States Party to protect people
from violence or bodily harm whether inflicted by government officials or by any individual,

3 Section 86 of the Constitution of Zimbabwe.

4 The tendency in international and other domestic human rights instruments has been to list
conditions for the limitation of the rights to freedom and security of the person but not for the
freedoms from (for example, torture etc) implied by these rights.
5 See Currie and De Waal The Bill of Rights Handbook (5th Edition,2005) 303.
6 For a discussion of the right, see Pieterse The right to be free from public or private violence after
Carmichele (2002) SALJ 27-39.
7 See S v Baloyi 2000 1 BCLR 86 (CC) 2002 (2) SA 425 (CC) para [11]-validity sustained of section
3(5) of the Prevention of Family Violence Act 133 0f 1993; Law Society of South Africa v Minister
of Transport 2011 (2) BCLR 150 (CC), 2011 (1) SA 400 (CC) paras [63,67]. In S v Baloyi the court
held that the specific inclusion of private sources emphasises that serious threats to security of the
person arise from private sources.

group or institution.8 In addition to these traditional negative duties, the Convention contains
affirmative obligations to prohibit, to punish and to discourage violence.9
There is a right to be protected against invasions of freedom and security whether by the state
or by private individuals. Violence against an individual is a grave invasion of personal
security. Section 12 (1)(c) requires the state to protect individuals, 10 both negatively by
refraining from such invasions itself and positively by restraining or discouraging private
individuals from such invasions.11 The right is engaged whenever there is an immediate threat
to life or physical security deriving from any source. 12 International experience suggests that
the most likely area of controversy in relation to the negative obligations imposed on the state
by the right will be assessing the limits of the states power to use force, for example in
effecting arrests or breaking up demonstrations.13 It is interesting to note that the right to
freedom from state violence protects individuals from police use of an unconstitutional
degree of force. At the same time, the right to freedom from private violence imposes an
obligation on the state to use violent means where necessary to quell or discourage violent
acts by individuals that may threaten the physical security of others. 14 Two principles can be
8 Convention on the Elimination of All Forms of Racial Discrimination , art 5(b)
9 Lawyers for Human Rights and Aother v Minister of Home Affairs and Another 2004 (4) SA 125
(CC).
10 Bishop W Constitutional Law of South Africa second edition Volume 3 Chapter 40 at 40-48.
11 Law Society of South Africa v Minister for Transport paras [59, 63,](state bears the obligation to
respect, protect and promote the freedom from violence from any source). See also Christian
Education South Africa v Minister of Education 2000 (4) SA 757 (CC) [47]The state must ... take
appropriate steps to reduce violence in public and private life. Coupled with its special duty towards
children, this obligation represents a powerful requirement on the state to act.; S v Baloyi 2000 (2)
SA 425 (CC) [11] section 12(1)(c) read with section 7(2) 0bliges the state to protect the right of
everyone to be free from private or domestic violence); Rail Commuters Action Group v Transnet Ltd
t/a Metrorail 2005 (2) SA 359 (CC) [69]-[71].
12 Law Society (note 1 above) [58].
13 Ian Carrie and Johan De Waal The Bill of Rights Handbook, 6th edition (2014), 282.
14 The right to be subjected to violence from private sources may thus be of application where
protests and demonstrations are disrupted by violent counter-demonstrations. See Platform Artzte fur
das Leben v Austria 13 EHRR 204 (1988) ( Police passively observed disruption of anti-abortion

suggested to delineate the legitimate scope of the states power to use force: proportionality
and non-excessiveness.15 Proportionality requires that the harm to be averted by the use of
force should be sufficient to justify its use. Non-excessiveness means that the least violent
means should be used to achieve the objective.16 According to the Constitutional Court, in
some circumstances, there is a positive component to the right in the Bill of Rights, which
obliges the state and its organs to provide appropriate protection to everyone through laws
and structures designed to afford such protection.17 Besides laws and structures, the
obligation of the state to protect rights may also imply in certain well-defined circumstances
a positive obligation on the authorities to take preventive operational measures to protect an
individual whose life is at risk from the criminal acts of another individual. 18 The consequent
reconsideration of the case by the High Court 19 and the Supreme Court of Appeal20 resulted in
the development of the law of delict to encompass state liability in circumstances where state
authorities knew or ought to have known at the time of the existence of a real and immediate
risk to the life of an identified individual or individuals from criminal acts of a third party and
they failed to take measures within the scope of their powers which, judged reasonably, might
have been expected to avoid that risk.21

demonstration by counter-demostrations; court holding that freedom of assembly sometimes requires

positive measures to be taken to allow demonstrations to protest without fear from violence.
15 Note 3 supra, 282.
16 See De Lange v Smuts NO 1998 (1) SA 736 (C).
17 Ibid[ 6].
18 Note 6 supra, referring to Osman v United Kingdom 29 EHHR 245 at 305.[115].
19 Carmichele v Minister of Safety and Security 2003 (2) SA 656 (C).
20 Minister of Safety and Security v Carmichele 2004 (3) SA 305 (SCA).
21 See Modderfontein Squatters, Greater Benoni City Council v Modderklip Boedery (Pty) Ltd 2004
(6) SA 40 (SCA) ( duty to protect, in the context of the right to property, mandated the development
of a remedy to compensate a landowner who had been the victim of a land invasion but had received
no assistance from the state in evicting the invaders).

It is worth noting that the courts have linked the right to freedom from violence to the
constitutional value of accountability. In Van Duivenboden,22 the Supreme Court of Appeal
wrote, where the conduct of the state, as represented by the persons who perform functions
on its behalf, is in conflict with its constitutional duty to protect rights in the Bill of Rights, in
my view, the norm of accountability must necessarily assume an important role in
determining whether a legal duty ought to be recognised in any particular case.

(i) CORPORAL PUNISHMENT IN THE FAMILY HOME, THE SCHOOLS AND

THE JUSTICE SYSTEM.
The prohibition of all forms of torture and cruel, inhuman and degrading treatment or
punishment23 accords with the provisions of most international instruments. Infringement of
this right occurs whenever any punishment or cruel or inhuman or degrading. In always
involves an infringement of human dignity and often relates to the deprivation of freedom. 24
The different words in the provision may be distinguished on a sliding scale starting with
torture as the most serious form of suffering, followed by cruel punishment and treatment. 25
The Constitutional Court held that, in determining whether a punishment is cruel, inhuman or
degrading, the relationship between the crime and the punishment, the seriousness of the
punishment, the impossibility of precluding arbitrariness and avoiding mistakes, the
irrevocability of the punishment26 and all other factors which play a role in the determination
of the culpability of the victim and the imposition of the punishment.27
22 Minister of Safety and Security v Van Duinenboden 2003 (1) SA 389 (SCA).
23 Article 5 of the Universal Declaration of Human Rights, art 7 of the International Covenant on
Civil and Political Rights, art 3 of the European Convention, and art 5 of the African Charter on
Human and Peoples Rights.
24 See S v Dodo 2001 (5) BCLR 423 (CC), 2001 (3) SA 382 (CC) par [35].
25 S v Williams 1995 (7) BCLR 861 (CC), 1995 (3) SA 632 (CC) para [25].
26 S v Makwanyane 1995 (7) BCLR 665 (CC), 1995 (3) SA 391 (CC) paras [54, 94, 196, 273]
27 S v Dodo supra 8, para [37].

Corporal punishment in respect of common law offences was authorised by the Criminal
Procedure and Evidence Act28 which stipulated that it was to be inflicted only upon male
offenders. In S v Ncube29 Gubbay JA (as he then was) writing on behalf of a unanimous
Supreme Court bench, described the form of punishment in the Zimbabwean context thus,
Once the prisoner is certified fit to receive the whipping, he is stripped naked. He is
blindfolded with a hood and placed face down upon a bench in a prone position. His hand and
legs are strapped to the bench, which is then raised to an angle of 45 degrees. [A] ...kidney
protector [is] secured above his buttocks at waist level. The prisoners body is then strapped
to the bench. The cane is immersed in water to prevent splitting. The strokes are administered
to one side across the whole of the buttocks. It is within the power of the official
administrating the strokes to determine their strength, timing and, to some extent, their
placement upon the buttocks. A second stroke upon the same part as an earlier stroke
undoubtedly causes greater pain than were it to be placed elsewhere. 30 The court further held
that whipping... [is] a punishment which in its very nature is both inhuman and degrading. 31
It can be noted that the decision was influenced by the fact that whipping has been abolished
in a wide number of countries. A more important consideration though was the manner in
which the punishment was administered. In the courts view this was reminiscent of flogging
at the whipping post, a barbaric occurrence particularly prevalent a century or so past. 32
Besides being inherently brutal and cruel because its infliction is attended by acute pain and
much physical suffering,33 whipping also strips recipients of all dignity and self respect. 34 It
cannot be reconciled with evolving standards of decency and treats members of the human

28Section 314 (2) (e).

29 1987 (2) ZLR 263 (S).
30 Ibid at 263.
31 Ibid. at 273 per Gubbay JA.
32 Ibid. at 274 per Gubbay, JA.
33 Ibid.
34 Ibid.

race as non humans.35 Gubbay JA also noted that whipping was a punishment that could
easily be abused by sadistic prison officers called upon to administer it. 36 Moreover, it had the
effect of degrading not only those punished, but the punisher as well.37
In S v Jevenile38 the Supreme Court decided, by majority39 that the imposition of a sentence of
whipping or corporal punishment upon juveniles was an inhuman or degrading punishment. A
minor had been found guilty of assault with intent to do grievous bodily harm 40 and had been
sentenced to receive a moderate correction of whipping of four cuts, to be administered in
private by a prison officer. The sentence was imposed in terms of section 330 of the Criminal
Procedure and Evidence Act which provided that male offenders under the age of nineteen
years might be ordered to receive in private a moderate correction of whipping, not
exceeding ten cuts41
Dumbutshena CJ (as he then was) said that major differences existed in the methods of
whipping adults and juveniles.42 He referred to the Prison Regulations, which stated that the
type of cane to be used on juveniles was a rattan cane, three feet long and not more than

35 Ibid.
36 Ibid.
37 Ibid. For a detailed discussion of the case see A.R. Gubbay, Human Rights in Criminal Justice
Proceedings: The Zimbabwean Experience, in The Protection of Human Rights in Africa Criminal
Proceedings, edited by M. Cherif Bassiouni and Ziyad Motala, Martinus Nijhoff Publishers,
Dordrecht, 1995.
38 1989 (2) ZLR 61 (S). A good analysis of the case is contained in Jonh Hatchard,The Fall and rise
of the cane in Zimbabwe, [1991] JAL, Vol. 35, nos. 1 and 2, 198.
39 Dumbutshena CJ; Gubbay JA and Korsah JA. The dissenting judges were McNally and
Manyarara JA.
40 He was seventeen years of age at the time of the commission of the offence, and eighteen when he
was sentenced.
41 Section 330(1)(b) of the Criminal Procedure and Evidence Act.
42 S v Jevenile, supra 24, at 72.

three-eighths of an inch in diameter. 43 This was smaller than the cane used on adults.
However, this did not amount a significant difference. Accordingly, the learned Chief Justice
held that the whipping of juveniles was just unconstitutional as the whipping of adults. In his
decision he endorsed and applied the reasoning used by Gubbay JA in the Ncube case.
Dumbutshena CJ added that because this institutionalised violence [i.e whipping] is meted
out to him, the victims personal dignity and physical integrity are assailed. In the result the
victim is degraded and dehumanised.44 As far as Dumbutshena CJ was concerned, the
prohibition on the imposition of whipping on juveniles extended to cover physical
chastisement inflicted by school masters.45 While recognising that parents have a common
law right to spank their children, he warned that if parents...inflict bruises, lacerations
fractures or other such injuries, such corporal punishment would be beyond the protection
afforded to the parents by their common law right. In his decision he referred to a number of
international and regional human rights instruments and cases,46 and deplored the fact that no
scientific study had ever been conducted within Zimbabwe on the effect of corporal
punishment as a sentence.47
Some practices are inherently cruel, inhuman or degrading. In S v Williams48Langa J
characterized corporal punishment as follows, The severity of pain inflicted is arbitrary,
depending as it does almost entirely on the person administering the whipping. Although the
juvenile is not trussed, he is a helpless. He has to submit to the beating, his terror and
sensitivity to pain notwithstanding. Nor is there any solace to be derived from the fact that
43 Section 109 (1)(a) of the Prison Regulations, FGN 42 of 1956. Section 109(1)(b) of the same
regulations stipulated that a rattan cane four feet long and not more than half an inch in diameter was
to be used in respect of prisoners over the age of nineteen.
44 Note 24 supra, 73.
45 Note 24 supra, at 82.
46Particularly Tyrer v United Kingdom (1978) 2 EHRR 1. A decision of the European Court of
Human Rights.
47 Ibid. at 72.
48 S v Williams 1995 (3) SA 632 para 45. See also S v Petrus and Another 1985 LRC 699, See D van Zyl Smit
Sentencing Punishment in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson and M Bishop (eds)
Constitutional Law of South Africa (2nd Edition, OS,December 2003.

there is a prior examination by the district surgeon. The fact that the adult is stripped naked
merely accentuates the degradation and humiliation. The whipping of both is, in itself, a
severe affront to their dignity as human beings. The Human Rights Committee held in an
older General Comment that the difference between categories of ill-treatment depends on the
nature, purpose and severity of the treatment applied, 49 and found instances of torture in some
early cases, it refrains today assigning cases of ill-treatment to a specific category; instead it
makes a general finding of a violation of ICCPR, Article 7.
In terms of the Education (Disciplinary Powers) Regulations, SI 298 of 1990, which relate to
both Government and private schools, only headmasters and deputy headmasters are
permitted to inflict corporal punishment and this punishment may only be inflicted on
schoolboys; schoolgirls may not be so punished. Husbands have no legally recognised right
to chastise their wives. Such chastisement constitutes an assault. In addition to that employers
have no legally recognised right to chastise their employees. Such chastisement constitutes an
assault. In S v Collett50 the court held that it is not lawful for employer to inflict corporal
punishment upon his employee. Consent on the part of the employee is not a defence. The
employer was guilty of assault.
To serve as a ground for justification, the chastisement must be moderate. If the bounds of
moderation are exceeded, an assault is committed. It is interesting to note that the most
important factors to be weighed in this regard are age, physical condition and sex of child,
gravity of offence, nature of instrument used and amount of force used. It must also be
established that the child had done something to warrant chastisement and that the punisher
was not simply acting vindictively against the child. In S v Mangwarira51 a student teacher
was convicted of assault after she had caned a schoolboy on his buttocks. She admitted
during her trial that she knew that only the headmaster was allowed to administer strokes.
That although the right of a parent to administer reasonable punishment is clear under the
common law, the right of a teacher is less certain. It may be, in the absence of any rule or
49 HRCttee, General Comment No 20 (1992), para 4. See also Sarah Joseph, Jenny Schultz and
Melissa Castan, The International Covenant on Civil and Political Rights (2 nd edn, Oxford University
Press: Oxford, 2004), 148-9.
50 1978 (1) RLR 205 (A).
51 1988 (2) ZLR 372 (S).

regulation to the contrary, that even a student teacher has the right to inflict moderate
chastisement on pupils under her control. The court held, however, that in view of the
appellant's admission that the authority to impose corporal punishment had been reserved to
the headmaster, it did not matter whether the reservation of authority was based on a
Statutory Instrument or an internal school rule in either case she could not rely on an
authority which she acknowledged she did not have, and her defence of lawfulness failed. In
S v Mutetwa52 a Headmaster had grossly exceeding the bounds of moderate chastisement. In
the case of S v Walata53 a young mother burned the palms of hands of 7 year old son with
flaming plastic because he had been caught stealing at his school. She was guilty of assault
with intent to do grievous bodily harm as she had gone way beyond infliction of moderate
corporal punishment for disciplinary purposes.

(ii) VIOLENCE DURING ANY ARREST OR DETENTION

When in detention, the liberty of individuals has been curtailed and they are at their most
vulnerable. In can be noted that the complete mercy of their captors. Therefore detention
powers should only be exercised when actually necessary. The rights to liberty and fair trial
set out safeguards to ensure that notions of due process are adhered to in the operation of
regimes of detention, the investigation and prosecution of criminal charges, and the conduct
of court proceedings.54 The idea is that no one should be deprived of their liberty. However,
there may be valid reasons for a state to assume custody of an individual. For example, it may
be necessary to detain convicted criminals who pose a threat to the community. 55 As such,
traditionally, the main concern of human rights activists has been the capricious use of
52 HH-373-87. See also S v Pondo and Another 1966 RLR 478 (GD). A parent caused the death of a child
when he beat him for disciplinary purposes. In S v Nyadvaranda HH-124-891988 (2) ZLR 372 the court held
that wife beating not permitted. The husband was guilty of assault. In Lekgathe 1982 (3) SA 104 (B) A teacher
who had beaten up an ex-pupil was guilty of assault with intent to do grievous bodily harm.

53 HH-84-89.
54 Shah S in International Human Rights Law 2014 2end Edition,259.
55 Note 50 supra

detention powers by oppressive governments in order to subdue their opponents.56 Beyond

this, it is recognized that restrictions on liberty are permitted and may even required. 57
However, even when the grounds of detention maybe justified, individuals in detention are
susceptible to violations of their human rights.58 It is interesting to note that the right to
liberty recognizes these concerns. It is an umbrella of protections, which seeks to prevent the
arbitrary use of detention powers and provide safeguards to eradicate ill-treatment or
disappearance from instances of permitted detention.59
In S v Kware60 X, a farm security officer, was armed with a shotgun loaded only with
birdshot. He caught C stealing a sackful of mealies but C tried to run away, ignoring shouts
and a warning shot. He shot at him from 90 metres, wounding him. X knew the thief and
could have identified him to the police and had him arrested later. The court held that the
guard was not obliged to let the thief escape, because it would then have been well-nigh
impossible to prove that he had been stealing there. Section 46 of the Criminal Procedure &
Evidence Act authorises killing someone resisting arrest for some First Schedule offences,
including "theft of stock or produce as defined in any enactment". Section 33 and the
common law authorise an owner or his agent to arrest anyone committing any offence on his
land. They are entitled to use reasonable force to do this. Because birdshot fired from such a
distance posed no threat to life, the force used was reasonable in the circumstances, and the
conviction was quashed. In S v Sanyangu61 the court held that excessive force was used to
effect arrest. In addition to that killing by using excessive force when trying to effect a lawful
arrest is culpable homicide unless the excess is so immoderate as to justify a verdict of
murder.

56 Ibid.
57 Ibid.
58 Ibid.
59 Ibid.
60 S-85-93
61 S-106-86

(b) FREEDOM TO MAKE DECISIONS CONCERNING REPRODUCTION

It is trite law that some of the pieces of legislation are more impactful on womens actual
experiences and they illustrate the deplorable conditions for women especially if the issue of
making decisions concerning reproduction is brought into perspective. The laws in Zimbabwe
recognise the right to life of a foetus in terms of section 48 (3) of the Constitution of
Zimbabwe62 and criminalises unlawful termination of pregnancy. As contradictory as it may
sound, one can draw an analogy upon the fact that, it is that same piece of legislation which is
granting reproductive rights upon women and yet again taking them away. 63 However, such
inconsistency, codified in the mother legislation for which every other piece of legislation has
to live up to, is totally unacceptable. That said, one can note that, this constitutional provision
is highly discriminatory with regards to womens reproductive rights and bodily autonomy.64
It is quite disturbing to point out the fact that, in the current legal framework in Zimbabwe, it
seems as if the State values the life of an unborn foetus more than the womans reproductive
rights and right to bodily autonomy under the guise that it is the States duty to protect human
life.65 The question is whether a foetus is a constitutional subject.66 There are a few
international and domestic human rights charters which explicitly answer this question in the
affirmative. Taking for instance, Article 4 (1) of the American Convention on Human Rights
requires the protection of the right to life by law and in general, from the moment of
conception.67 An attempt to introduce a similar provision into Article 6 of the International

62 Amendment No. 20 ACT 2013.

63 The state therefore has a duty to protect the life of the foetus, also against action by its mother, and
a woman has a fundamental legal duty to carry the foetus to term. See section 52 (b) of the
Constitution of Zimbabwe.
64 The law in Zimbabwe regards a foetus as a person with the right worthy of protection. This is
provided for in Section 48 (3) of the Constitution.
65 The protection of the right to life from the moment of conception is provided for under the
American Convention on Human Rights, such protection impedes abortion more directly and
significantly.
66 D. Van Wyk et al, Rights and Constitutionalism, The new South African Legal Order, 2004-p 229
67 Art 4 (1) of the American Convention on Human Rights.

Covenant on Civil and Political Rights failed,68 though article 6 (5) provides limited
protection for pre-natal life by requiring that sentence of death shall not be carried out on
women.69 It can be noted that in the third paragraph of the preamble of the United Nations on
the Rights of the Child, reference is made to the special safeguards which children need
before as well as after birth while principle 4 requires the provision of special care for the
child and his or her mother including adequate pre-natal and post-natal care.70
This position then forces one to arrive at the conclusion that, by making decisions for women
with regards to reproduction, the State is playing the role of a patriarchal father in the African
society who has exclusive rights over his family and wife. Surprisingly, in other jurisdictions,
notably the US and Canada, constitutional courts, while recognizing the protect-worthiness of
foetal life as potential life, have maintained that, especially during the first trimester of
pregnancy, the rights of the mother trump those of the unborn child. 71 Accordingly, in Roe v
Wade72 the US Supreme Court concluded that the mothers right to privacy entitles her to an
abortion, while the Canadian Supreme Court, in Morgentaler v The Queen,73 based the
mothers entitlement to abortion on her right to the security of her person. This only proves
that, our legal system is deeply rooted in the archaic notions of Roman-Dutch laws attitude
towards abortion and inferiority of women thereby making Zimbabwean law conservative,
with the normative of culture intertwined with the patriarchal ideology. Thus it can be argued
68 Deinstein The Right to life, Physical Integrity, and Liberty in Henkin (ed) The International Bill
of Rights: The Covenant on Civil and Political Rights (1981). For an elaborate exposition of the
genesis of both art 3 of the Universal Declaration and Art 6 of the Covenant in relation to the issue of
protecting pre-natal life.
69 The American Convention on Human Rights and the Declaration on the Rights of the Child of
1959 are the only international human rights documents which refer specifically to the pre-natal
condition of the child.
70 Art 6 of the Convention on the Rights of the Child requires state parties to the Convention to
recognise every childs inherent right to life (art 6(1)) and assume the obligation to ensure to the
maximum extent possible the survival and development of the child (art 6(2)).
71 Du Pleissis Jurisprudential Reflections on the Status of Unborn Life 1990, 49-54.
72 410 US 113, 35 Led 2d 147, 93.
73 (1988) 44 DLR (4th) 385 (SCC).

that womens reproductive capacity has been abused to prolong their position of
subordination in society and that part of undoing discrimination against women will be to
recognize their full and exclusive control over this capacity.74 Her right to equality before the
law and to equal protection of the law 75 will then entitle a woman freely to choose whether
she wants to have her pregnancy terminated or not.

Mapingure v Minister of Home Affairs

There facts of the case are that on 4 April 2006, Mapingure was attacked and raped by
robbers at her home in Chegutu, Zimbabwe. She immediately lodged a report with the police
and requested that she be taken to a doctor in order to access medication to prevent pregnancy
and any sexual infections. After some delays at the police station she was taken to the
hospital later in the afternoon. However, the doctor only treated her knee injury stating that he
could only provide the medicine to prevent pregnancy and any sexual infections in the
presence a police officer. Mapingure repeatedly went to the police in the days that followed
but was advised that the police officer mandated to deal with her case was not available.
When she returned to hospital, the doctor insisted that she could only give her medication if a
police report was provided. On 7 April, Mapingure was eventually accompanied to the
hospital by another police officer but was informed that she could not receive the medication
she had requested as the prescribed 72 hours within which the emergency contraception
should be administered had elapsed. On 5 May 2006, Mapingures pregnancy was formally
confirmed. Upon discovering she was pregnant, Mapingure sought a lawful termination; as a
victim of rape she is eligible for an abortion under Zimbabwes Termination of Pregnancy
Act. A prosecutor and magistrate erroneously told her that she could not acquire the
magisterial certificate required for termination until the rape trial had been completed. When
she eventually obtained a certificate of termination on 30 September, it was no longer safe to
carry out the termination. Mapingure gave birth on 24 December 2006.

74 S v Hartman 1975 (3) SA 532 (C).

75 See section 56 of the Constitution of Zimbabwe Amendment No. 20.

The Termination of Pregnancy Act76 governs the lawful termination of a pregnancy in

Zimbabwe. The Act77 provides that no one may terminate a pregnancy otherwise than in
accordance with the Act.78 The Mapingure case illustrates the extent to which women that are
legally permitted to undergo abortion encounter hurdles and how they suffer from oppression
at the hands of their male counterparts and the law.79 The Termination of Pregnancy Act made
it difficult for the aggrieved party to obtain the recourse that she sought due to the fact that it
was laborious to satisfy the conditions set forth in the Act thereby indicating that, women are
not permitted to have an abortion in Zimbabwe even when they meet up with the criteria of
eligibility provided in the Act.80 Consequently, she was forced to relive the traumatic
experience that she had encountered since the baby that she finally gave birth to was a
constant reminder of the traumatic experience that she had been subjected to. 81 In Zimbabwe
pregnancy may only be terminated if it is conceived as a result of incest, rape or any type of
unlawful sexual intercourse, or if it constitutes a serious threat to the physical health or life of
the pregnant women or if there is a serious risk that the child will suffer from physical or
mental defect.82 Hence, one can point out the fact that, for the law to address these biological
differences between men and women, there is need for policy makers in Zimbabwe to adopt
the South African approach which is more favourable to the plight of women and which
advances their rights in a fuller scope.83 This is so particularly because, when it comes to
reproductive rights in Zimbabwe, women are yet to be given the power to exercise their own
76 Chapter 11:07.
77 For a discussion of the Act see I. C Chikanza and W. N Chinamora,
Termination of Pregnancy in Zimbabwe, Zimbabwe Law Review, 1985, vol. 3, p
81.
78 Section 3 of the Termination of Pregnancy Act.
79 Mildred Mapingure v The Minister of Home Affairs, Minister of Health and Child Welfare and
Minister of Justice, Legal and Parliamentary Affairs SC 22/14.
80 Section 5 (1) of the Termination Act provides that, a pregnancy may be
terminated by a medical practitioner in a designated institution with the approval
in writing of the superintendent of such an institution.
81 This proves that womens rights to bodily autonomy are trampled upon.
82 See Section 49 of the Termination Act.

decisions on whether to carry the pregnancy to term or not since pregnancy is a unique
condition applicable only to the female species from the beginning right to the end. 84 Women
should be given a chance to exercise their reproductive choice in deciding whether or not to
carry the foetus to term before the law takes away such a right by criminalizing abortion.
A close analysis of section 52(b) of the Constitution which states that every person has the
right to bodily and psychological integrity, subject to other provision of this Constitution, to
make decisions concerning reproduction is that the specific recognition of reproductive
freedom was probably intended to leave high room for the courts to prohibit the termination
of pregnancies, and this section gives recognition to the fact that socially entrenched forms of
physical oppression and exploitation relates to reproduction and security. According to O
Sullivan, section 12(3) directly confronts the fact that women do not enjoy security in and
control over their own bodies, taking into account the high rates of sexual violence against
women,85 and that the circumstance in which women become pregnant are often beyond their
control. In the case of Christian Lawyers it was stated that section 12(2) provides a women
with the constitutional right to terminate her pregnancy. O Sullivan states that the freedom of
choice is entrenched in this section is reinforced by the constitutional rights to life, dignity,
privacy, and access to reproductive health care.86
Further, the author states that the Choice Act promotes a womens right to freedom and
security of her body by affording her the right to choose to terminate her pregnancy safely,
and that the women concerned is in the best position to make that decision, hence only her
consent is needed.87 The court held further that the fundamental right to individual self
83 Unlike the Zimbabwean position, women in South Africa are given granted the autonomy to
decide what is to happen to their bodies without any interference from the government.
84 Smits, The Right to Life of the Unborn Child in International Documents, Decisions and Opinions
(1992) 8
85 The Crime Reports for 2010/2011 indicates that 66, 196 caces were reported involving sexual
offences. The report states that 32, 820 were sexual offences committed against children younger than
eighteen. (SAPS 2011 www.spas.gov.ZA 12)
86 O Sullivan Reproductive Rights in Woolman S et al (eds) Constitutional Law of South Africa
(2011) 37-17.
87 Note 59 supra, 37-15

determination lies at the very heart and base of the constitutional right to terminate a
pregnancy, and that sections 10, 12(2)(a) and (b), 14 and 27(1)(a) provide the foundation for
the right to terminate a pregnancy. However, it was found that the right to terminate a
pregnancy, like all rights, is not absolute, and state has a legitimate role, in the protection of
prenatal life as an important value in our society, to limit a womens right to termination. 88
One can argue that Zimbabwe must draw lesions from countries like South Africa which
legalize abortion especially in first trimester and second trimester when it is medically safe to
terminate pregnancy. It also needs to be noted that second trimester termination of pregnancy
services are not rendered on demand, as with first trimester terminations. Pregnant women
are required to consult with a medical practitioner, and the medical practitioner must be of the
opinion that continued pregnancy will affect the social and economic circumstances.

(c) SECURITY IN CONTROL AND CONTROL OVER ONES BODY

It is interesting to note that the right to freedom and security of the person is one which
creates a sphere of individual inviolability. Security in denotes the protection of bodily
integrity against intrusions by the state and others. Control over connotes the protection of
what could be called bodily autonomy or self-determination against interference. 89 Once it
has been established that the bodily integrity right has been implicated, the courts will be
required to find criteria for distinguishing justifiable from unjustifiable invasions. In order to
avoid arbitrariness, a decision to invade bodily integrity must be procedurally regular. 90 It
should be noted that not every action by the state or another party that involves touching
another persons body warrants constitutional scrutiny.91

88 Note 59 supra, 31-18.

89 Tribe L American Constitutional Law 2 ed (1988) 1330.
90 For example, close body searches must be grounded at least on a requirement of reasonable
suspicion. An intrusion must avoid unnecessary physical pain or anxiety and it must not run the risk of
disfigurement or injury to health.
91 Woolman and Bishop, Constitutional law of South Africa 2 ed, Volume 3, 40-87.

In S v Huma92, the South African High Court had the following to say about the mandatory
taking of fingerprints:
The process of taking ones fingerprints does not, in my view, constitute an intrusion into a persons
physical integrity. No physical pain of any kind accompanies this process. By comparison, the taking
of a blood sample constitutes more of an intrusion into a persons physical integrity than the mere
taking of ones fingerprints. When a blood sample is taken, the skin is ruptured and it is accompanied
by a small element of pain. Pain and violation of a persons physical integrity are also associated with
corporal punishment and other forms of punishment. By comparison, in my judgement, the taking of
fingerprints is on par with the mere taking of a photograph, which does not, in my view, violate the
physical integrity of a person.

That said, one contends that non-trivial invasions of bodily integrity that attract constitutional
scrutiny occur most frequently in the context of law enforcement investigations. Taking for
instance, a suspected drunk driver may be required to undergo a breathalyzer test or provide a
blood sample for analysis. Thus in such circumstances this right is invaded.
Additionally, it is prudent to note that, although every individual is granted control over their
body, sight should not be lost to the fact that the Court may not be sympathetic to uses of the
body that the majority of Zimbabweans would find morally repugnant. 93 These sentiments
were shared in the case of S v M, wherein Hehej offered the following observation,
There are undoubtedly some acts which are so repugnant to and in conflict with human
dignity as to amount to perversion of the natural order. Bestiality seems to me to be an
obvious example of an independent unnatural offence which justifies this categorisation.94
It then follows that, in circumstances where it appears to the court that the use of the body
was against the notions of morality and moral convictions of the society, the court may not

92 S v Huma 1996 (1) SA 232, 2361-237B (W).

93 S v Jordan 2002 (6) SA 642 (CC). This case concerned the constitutionality of legislative
provisions outlawing prostitution and brothel-keeping. The applicants challenge was based on the
rights to equality, privacy, dignity, freedom and security of the person and freedom of trade. It was
then held that, the right to bodily autonomy is concerned not with the welfare of the individual but
with the preservation of individual integrity.
94 S v M 2004 (3) SA 680 (O).

condone such conduct. This is best illustrated by the famous case of Riggs v Palmer95 where
the court was asked to decide whether or not a grandson named in the will of his grandfather
could be allowed to inherit, given that he had murdered his grandfather in order to gain
inheritance. In general, a person named as heir under a will is entitled to inherit. The court,
however, found it immoral to allow a murderer to inherit. It invoked the moral principles that
no one shall be permitted to profit by his own fraud or take advantage of his own wrong, or
to found any claim upon his own iniquity or to acquire property by his own crime and denied
the murderer his inheritance.96 Be that as it may, it can be noted that illness, age or mental
incompetence may result in the absence of individual autonomy. In such circumstances where
the decision would have been a matter of autonomous choice, courts and other parties may be
asked to intervene on the afflicted persons behalf. 97 Thus under such circumstances, other
parties are given authority to intervene upon the afflicted persons rights, even though they
might have the right of control over their bodies.

(i). SUBJECTION TO MEDICAL OR SCIENTIFIC EXPERIMENTS

It can be noted that, day-to-day medical care and therapy amount to experimentation. That
said, it can be conceded that medical knowledge is controvertible and partial. When doctors
prescribe approved drugs or engage in accepted practices on their patients, they are still
experimenting: no two patients react exactly alike to the same drug or procedure; and it is
often the case that it is not until after years of treatment on a willing and large population of
patients that doctors know the side-effects and untoward reactions of various courses of
treatment.98 This is enshrined in section 52 (c) wherein it is stipulated that, Every person has
95 115 NY 506, 22 NE 188 (1889).
96 Madhuku L, Introduction to Zimbabwean Law, 2010 p 56.
97 Dworking R Lifes Dominion (1993), 225.
98 Currie I & De Waal J, The Bill of Rights Handbook, 6th ed 2014, 212.

the right to bodily and bodily and psychological integrity, which includes the right not to be
subjected to medical or scientific experiments , or to the extraction or use of their bodily
tissue, without their informed consent.99

(ii) EXTRACTION OF BODILY TISSUE

Hyper polymorphic short tandem repetitive DNA sequences, STRs or microsatellites, have
become widely used in human identification, particularly in criminal cases and in mass
disasters. In such cases the substrates for the analyses may be decomposed biological
material.100 STR typing for forensic purposes has proven to be successful even under extreme
sample conditions.101 The laboratory performing DNA analyses for identification purposes
may for obvious reasons be put under time pressure from the relatives of missing persons or
the law enforcement authorities requesting the analyses.102 DNA fingerprinting is a technique
to create an image of someones DNA. Aside from identical twins, each person has a unique
pattern of short DNA regions that are repeated. These stretches of repeated DNA are of
different lengths in different people. Cutting out these pieces of DNA and separating them
based on their lengths gives an image that represents a persons unique DNA signature. DNA
can be extracted from any cell that contains DNA. Common types of tissues from which
DNA is extracted include blood, saliva, hair, sperm, skin and cheek cells. Blood contains
many types of cells. The most abundant are red blood cells, but those do not contain DNA.
However, blood contains many immune cells that patrol the body looking for foreign
invaders. These cells have DNA that can be extracted.

99 Ammendment No 20.
100 Hagelberg E and Jeffreys A J, Identification of the skeletal remains of a murder victim by DNA
analysis, Nature 352 (1991) 427429.
101 Monaghan B and Newhall P, STR results for both epithelial and spermatozoal fractions obtained
from 13 year old microscope slides of vaginal swab material, Can. Soc. Forensic Sci. J. 29 (1996) 13
19.
102 Wiegand P and Brinkmann B, DNA typing of debris from fingernails, Int. J. Leg. Med. 106 (1993) 8183.

In the case of S v Mogale103 there has been no challenge to the chain of DNA evidence that
was led by Capt Govan of the Forensic Science Laboratory of the South African Police. Such
evidence was that, except for one case that was investigated after the accused was arrested,
all the samples of articles, condoms and crime scene sex kits were collected by the police at
the scenes of the murders well before the accused was suspected of any serial rape or murder.
The accused did not gainsay that DNA evidence was obtained from the bodies or victims, the
specimen properly sealed, referenced, transported and received by the Forensic Science
Laboratory in Pretoria and also analysed and compared. Furthermore, the sexual kit samples
of the complainant, M, in this case and charges were also properly collected, packaged and
sent for analysis. A comparison 48 with a control blood sample obtained from the accused
found that the accuseds male DNA profile was present in the sexual assault kit sample.
Despite this evidence of a match the accused did not contradict it or come up with a cogent
explanation why his DNA profile was there.

(iii) WITHOUT INFORMED CONSENT

Finally, there is the prohibition of subjection to medical and scientific experiments without
informed consent. In order to determine whether the duty has not been complied with, the
meaning of the phrase medical or scientific experiments and informed consent are
important. Experimentation means medical or scientific research. 104 Informed consent
requires that bearers of the right must have the medical capacity to know that they will be
taking part in a research project and what the purpose of this project is. They must be given
adequate time to consider their participation and they must be informed that they can
withdraw at any time.105 In 2005, Van Wyk concluded that interventional, non-therapeutic
103 SS36/2009. See also the South African case of S v Zuma (unreported judgement).
104 See Van Wyk Clinical trials, medical research and cloning in South Africa 2004 THRHR 1;
Van Wyk Guidelines on medical research ethics, medical experimentation and the Constitution 2001
THRHR3; Van Wyk Consent for research on human participants in South Africa; New
developments 2010 THRHR 214, Van Oosten The law and ethics of information and consent in
medical research 2000 THRHR.
105 Van Wyk HIV preventive vaccine research on children: Is it possible in terms of South African
law? 2005 THRHR 35 38.

research that carries more than negligible or insignificant risk, will not be allowed in terms of
the South African Constitution or legislation, that children under the age of eighteen are in
competent to consent independently and no-one can consent on their behalf to this kind of
research.106

106 Van Wyk 2005 THRHR.