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.
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.
He said transgender citizens were part of Zimbabwean society whose rights ought to be recognised as the constitution does not provide for their discrimination. “The legislature in its wisdom put a cap on the arrest of suspects and police officers are not expected to hysterically respond to calls for the arrest of suspects, but to satisfy themselves on reasonable grounds that the suspect has committed an offence before effecting the arrest,” he said.
The judge said through the conduct of the police, Nathanson was made cheap fodder by journalists and social media.
“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,” he said.
Justice Bere ordered the defendants to pay $400 000 being damages for unlawful arrest, emotional distress, malicious prosecution and contumelia.
“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,” ruled the judge.
The defendants were also ordered to pay the legal costs.
In her testimony, Nathanson said she suffered humiliation and emotional distress when police arrested and detained her before forcing her to undergo gender verification at the United Bulawayo Hospitals (UBH).
She was arrested in a bar on January 16 in 2014 by six police officers in riot gear and taken to Bulawayo Central Police Station.
Nathanson said her arrest was at the instigation of Mteliso who she accused of having acted without just, reasonable or probable cause, and maliciously.
Nathanson said Mteliso made a false report to the police after he tried and failed to extort money from her. “I was escorted by police to Bulawayo Central Police Station where they forced me to strip as way of verifying my gender and I was subjected to insults and slurs by police officers. While in custody, I was also taken to the United Bulawayo Hospitals where I was again forced to strip and undergo medical examination,” she said.
“I was subjected to humiliating questioning, viewing and morbid curiosity by medical personnel at the hospital.”
Nathanson said she was detained for 48 hours before being taken to court.
She said the conduct by the defendants was extremely abusive, malicious, indifferent and uncaring and therefore exemplary damages must be awarded as a result of the unlawful arrest and malicious prosecution. — @mashnets