Mashudu Netsianda, Senior Court Reporter
THE High Court has ordered the Minister of Home Affairs and Cultural Heritage and police bosses to pay Bulawayo transgender activist Ricky Eugene Nathanson $400 000 as compensation following her unlawful arrest for allegedly using a ladies’ toilet at a city hotel. Nathanson (53), who police thought to be male, wore all kinds of make-up and a brown hairpiece throughout the civil trial in 2017.
“Judge Bere said transgender citizens were part of Zimbabwean society whose rights ought to be recognised as the constitution does not provide for their discrimination. ”
Nathanson, who was being represented by Advocate Perpetua Dube, filed summons at the Bulawayo High Court citing the Home Affairs Minister, a portfolio held by Dr Ignatius Chombo at the time, Augustine Chihuri, who was then Police Commissioner General, ZRP Bulawayo Central Chief Inspector Enock Masimba and former Zimbabwe Congress of Students’ Union (Zicosu) president Farai Mteliso who reported her to the police leading to her arrest in 2014 on charges of criminal nuisance, as defendants.
She was acquitted by the then Bulawayo magistrate Mr Abednico Ndebele who ruled that prosecutors had failed to prove their case. The magistrate said it was not a crime for a man to enter a toilet for females or the other way round. In her lawsuit, Nathanson accused the defendants of violating her constitutional rights. She sought damages caused by her unlawful arrest, detention, malicious prosecution and emotional distress and contumelia.
Although Nathanson wanted to be paid US$2,7 million, former High Court judge Justice Francis Bere directed the defendants to pay the plaintiff $400 000. “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,” said Justice Bere.
In his judgment handed down on Thursday, Justice Bere ruled that Nathanson’s arrest and subjection to forced anatomical examination was in violation of her constitutional right as a citizen.
“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 most crude and naked manner by adventurous members of the police. 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,” he said.
Justice Bere said Nathanson was arrested outside the provisions of section 25 of the Criminal Procedure and Evidence Act. Read more via the Chronicle