Zimbabwe: Landmark Ruling On Termination of Pregnancy

In a landmark ruling, the High Court has declared a section of the Termination of Pregnancy Act unconstitutional, significantly broadening access to safe and legal abortion for teenage girls and survivors of rape, including marital rape.

The ruling is still subject to confirmation by the Constitutional Court before it comes into effect.

The ruling was built around the constitutional rights of children in the case of teenagers under the age of 18 having a right to abortion as this could only arise from sexual relations that were unlawful in all circumstances, regardless of whether the male was prosecuted.

The extension of the existing right of rape victims to an abortion to women raped in marriage was based on the existing extension of the law that recognised marital rape as a crime.

It arose from a case brought by Women in Law in Southern Africa (WLSA), a legal advocacy group seeking, among other issues, to expand the grounds for access to abortion and post-abortion care for minors and women who are survivors of sexual violence, including those subjected to marital rape.

Central to WLSA's application was a challenge to Section 2(1) of the Termination of Pregnancy Act, which previously restricted legal abortion access for children under the age of 18 and married women who had been raped by their spouses.

Justice Maxwell Munodawafa Takuva, presiding over the matter, ruled in favour of WLSA's application. WLSA brought the action against Health and Child Care Minister Dr Douglas Mombeshora, Parliament, and Attorney-General Mrs Virginia Mabiza, but these did not oppose the application.

In his ruling, Justice Takuva said: "Section 2(1) of the Termination of Pregnancy Act is hereby declared unconstitutional and invalid."

The court acknowledged the pervasive issue of teenage pregnancies in Zimbabwe, alongside the associated rise in illegal abortions and adolescent maternal deaths.

Justice Takuva emphasised that the application was part of an ongoing judicial effort to protect the rights of children, following earlier landmark rulings, such as the Mudzuri & Anor v Minister of Justice Legal & Parliamentary Affairs & Ors (2016) case on child marriage and the Diana Eunice Kawenda v Minister of Justice, Legal and Parliamentary Affairs & Ors (2022) case on the legal age of sexual consent.

The judge noted that Zimbabwe's Constitution, particularly Section 81(1)(e), protected children from sexual exploitation, including any form of sex with minors.

He further stated that teenage pregnancies were a form of abuse that demanded legal protection.

According to the judge, denying pregnant minors the right to a safe abortion infringed on their constitutional rights and violates Section 81(2) of the Constitution, which prioritised the best interests of the child. The ruling also addressed the issue of marital rape, which has been criminalised in Zimbabwe.

The court found that victims of marital rape should have access to safe abortions as a matter of constitutional and human rights.

Justice Takuva said: "Teenage pregnancies and child marriages disrupt education, perpetuate poverty, and violate the dignity of the girl child."

He added that the impact of pregnancy on a minor's dignity is severe and that the law as it stands infringed on their constitutional rights.

The court further clarified that any sexual act with a minor under 18 is unconstitutional, and any pregnancy resulting from such an act must be treated as unlawful under the Termination of Pregnancy Act.

Justice Takuva highlighted that "subjecting children to pregnancies without access to safe abortion is abuse and torture, in violation of Section 53 of the Constitution of Zimbabwe."

The High Court's decision comes in the context of Zimbabwe's broader efforts to strengthen protections for children and women.

In the Diana Eunice Kawenda case, the Constitutional Court raised the age of sexual consent from 16 to 18, declaring any sexual activity with minors illegal.

Justice Takuva referenced this precedent in his ruling, arguing that pregnancies resulting from unlawful sexual acts must be addressed within the framework of reproductive rights.

The case will now be referred to the Constitutional Court for confirmation of the High Court's declaration of invalidity.

This procedural step is necessary to finalise the judgment and enable legislative amendments to the Termination of Pregnancy Act.

WLSA national director Ms Isheanesu Chirisa welcomed the ruling, describing it as a significant step forward for women's and girls' rights in Zimbabwe.

She noted that the judgment expanded the legal protections under Section 2(1) of the Termination of Pregnancy Act, allowing minors and victims of marital rape to access safe abortion services.

This article was originally published on The Herald.