Read judgment

Ever since he took office as a member of Zimbabwe’s Supreme Court, Justice Francis Bere’s professional life has been something of a roller-coaster.

Previously a teacher, a magistrate and then a legal practitioner in private practice, he was appointed a member of the high court in 2004. During May 2018 he was elevated from his position as senior judge in charge of the high court in Bulawayo to Zimbabwe’s apex court.

Media attention was briefly focused on claims of misconduct brought by a dissatisfied litigant - but earlier this year he was completely exonerated by the Chief Justice and the Judicial Service Commission. And just before those findings were announced he would have felt professionally vindicated by his election as president of the SADC Administrative Tribunal. Now, however, Justice Bere's profile has gone up another notch: he has become the darling of a still rather astonished section of the local and international public. This follows his unexpected ruling in favour of a transgender Zimbabwean and an order that she be paid damages.

The case concerns ‘Rikki’ Nathanson, who, in January 2014, was at a hotel to meet a client when she was pressured for a bribe by a youth leader from the ruling party, Zanu-PF. After she refused, the youth leader called the police who then subjected her to further seriously humiliating treatment.

Despite Zimbabwe’s laws and official attitude to the LGBTI community, Justice Bere has now delivered a landmark decision on Nathanson’s claim for damages. His judgment is filled with resounding human rights views and phrases. It deals head-on with the traumatic experience she experienced, the despicable behaviour of those who had her arrested and the equally horrific behaviour of police who held her in custody, subjecting her to infringements of her basic rights.

And the judge did so against a background of extreme homophobia in Zimbabwe, extending to anyone suspected of being an LGBTI person.

To get a sense of just how revolutionary – there are few other words that could accurately describe it – his judgment is, consider his opening sentence: ‘This case raises issues regarding minority rights in this country, and one hopes this judgment in a way will help spark a frank national conversation of these issues which we appear to have been shy or less enthusiastic to openly discuss.’

‘Shy to discuss’ would be putting it mildly. Who would even dare discuss the issue of transgender people in Zimbabwe when they are regarded as easy prey by homophobic members of the public and when assaults on gay and transgender people are carried out with impunity? Both the USA and the UK have issued warning notes for LGBTI people about the dangers of travel in Zimbabwe. And the international human rights community continues to caution that homophobia, public hostility, stigmatisation and threats of legal action against LGBTI people are rife.

Yet here is Justice Bere carefully explaining what ‘transgender’ is, extensively quoting – and agreeing with – the Chief Justice of India in a case involving transgender people, and saying that they are entitled to enjoy civil rights in Zimbabwe, just like anyone else.

Quoting from philosophers cited in the Indian case as saying that 'no one can escape from their individuality', Justice Bere then proclaims: ‘This is the unmistakable loud cry that I can clearly hear from this transgender citizen before me in these proceedings and whose case I am set to consider.’

The facts were not in dispute: Nathanson had used the toilets at the hotel marked for women; Farai Mteliso of the Zanu-PF Youth League and a friend, drinking nearby, noticed her use of the toilets for women, and threatened that if she did not provide money for them to buy more whisky they would ‘fix’ her and call the police. When she refused, they held her prisoner until members of the riot police arrived and drove her away in the back of an open truck to Bulawayo's central police station.

But her humiliating treatment had only just began. She was forced to strip and show the police her genitalia, after which she had to face their jeering and laughing. She was taken, without her consent, to a hospital for ‘gender verification’, and then for further examination to another hospital where a gynaecologist concluded that, while biologically a man, she had ‘overpowering female hormones’ that led her to act and live as a female.

She was later charged for entering a female toilet though she was a man. More than a year later, the charges were dropped when the magistrate questioned what the offence was that she was alleged to have committed.

Nathanson then launched a claim for damages, listing infringements of her rights for which she should be compensated. These included highly offensive media reports and the collapse of her modelling agency business as a result.

Evidence from the side of the government and the police was unimpressive, said the judge. The police actually admitted that even if Nathanson had objected to being medically examined they would have forced her to do so in order for the police to ascertain whether she had committed ‘the offence in question’.

The judge said the police had no arrest warrant and for the arrest to be valid she would have had to be suspected of certain, listed, criminal offences. These, he noted, did not include ‘the entering of a female toilet by a male person’. Indeed, this did not appear to be a crime at all.

Under Zimbabwe’s constitution, the kind of ‘inhuman and degrading treatment’ experienced by Nathanson was clearly outlawed. She had committed ‘no recognised offence’. Her arrest and prosecution were malicious and the police could not escape liability given their 'outrageous' behaviour, he said.

‘Transgender citizens of part of the Zimbabwean society’, he added. ‘Our constitution does not provide for their discrimination.'

And then the judge added a recommendation that is truly breathtaking, coming against the background of rife discrimination against LGBTI people in Zimbabwe: ‘To avoid the recurrence of what happened to (Nathanson) in this case, it might be prudent to construct unisex toilets as an addition to the resting rooms in public places.’ The provision of such toilets has proved a serious rallying call for right-wingers even in acknowledged democracies, so for a senior judge to make such a suggestion is astonishing and to be applauded, particularly since here it appears simply as a logical consequence of the series of events in the case. 

The Z$400 000 plus legal costs awarded to Nathanson translate to just over USD 1 000, but this is clearly a moral - rather than a financial - victory. In any case, in the years since she brought the claim, Nathanson has relocated to the USA, her successful request for asylum helped by the ongoing threats, intimidation and vicious assaults that she continued to experience even after the arrest and humiliation for which she has now been awarded damages.

She has also been honoured with an award for her courage in advocating human rights in relation to LGBTI rights in particular.

There is a seriously puzzling issue that remains, however. Justice Bere heard Nathanson’s damages claim over three days in 2017, while he was still a member of the high court. According to Nathanson, at the end of argument the judge said he would deliver his decision ‘within a month’.

In fact, it took two years and four months for judgment to be delivered, and no reason nor any apology has been given for the extensive delay.

Could it be that the judge feels more secure in delivering such a controversial human rights decision now that he is a member of the Supreme Court and with a rather more international profile given his presidency of the SADC Administrative Tribunal? Whatever the reason, the local and international pro-democracy community no doubt hopes he will continue to deliver strong human rights judgments – but that he does so rather more speedily in future.