The Harare High Court has ruled that a law denying access to legal abortion for children under 18 and married women raped by their husbands is unconstitutional. However, the ruling is subject to confirmation by the Constitutional Court before it becomes effective.
Under the Termination of Pregnancy Act, abortion was allowed only in three circumstances: if the pregnancy endangered the woman’s life, if there were a serious risk the child would suffer permanent physical or mental defects, or if the pregnancy resulted from rape (excluding marital rape).
The court’s decision extends abortion access to women who are victims of marital rape, aligning with the legal recognition of marital rape as a crime.
This ruling stems from a case filed by Women in Law in Southern Africa (WLSA), which sought to expand abortion rights and post-abortion care for minors and women who are survivors of sexual violence, including those subjected to marital rape.
WLSA challenged Section 2(1) of the Termination of Pregnancy Act, which restricted access to legal abortion for minors and married women raped by their spouses.
The action was filed against Health and Child Care Minister Douglas Mombeshora, Parliament, and Attorney-General Virginia Mabiza, all of whom did not oppose the application.
Human rights lawyer Tendai Bit represented WLSA and Talent Forget in the case.
Justice Maxwell Takuva, in a November 22 judgement, declared section 2(1) of the Termination of Pregnancy Act [Chapter 15:10] “unconstitutional and invalid.” He ruled:
In my view, the dignity of adolescent children who are impregnated, the dignity of married women who are raped is adversely affected by the provisions of s 2(1) of the Act.
The Zimbabwe constitution protects the right of every person to the entitlement of inherent dignity in their private and public life and the right to have that dignity respected and protected. The right to dignity is foundational and has been equated with the right to life.
Section 2 of the Act falls away immediately as a consequence of Constitutional Court judgments. Firstly, once the Constitutional Court had outlawed child marriages as it did in the Mudzuri case and once the court outlawed and raised the age of sexual consent to 18 years as it did in the Diana Eunise Kamwenda case, it means that sexual intercourse with a minor is unlawful.
Consequently, this type of unlawful intercourse should be included in the definition of ‘unlawful intercourse’ in section 2(1).
In the same vein, once the legislature has outlawed marital rape as it did with the amendments to the law, it follows then that section (2)(1) should be set aside.
The ruling, if confirmed by the Constitutional Court, will allow abused children below 18 years of age to have access to safe and legal abortion.
Justice Takuva said section 81 of the Zimbabwe constitution provides that every child has a right to be protected from sexual exploitation. He added:
In view of this, any sex with a minor is therefore unconstitutional and therefore any pregnancy arising from such sex has to be treated as unlawful intercourse for the purpose of section 2(1) of the Act.
Once it is accepted that the age of sexual consent consistent with section 81 of the constitution is 18, it becomes clear that any sexual act with a minor and indeed any pregnancy arising thereto, is unlawful and illegal.
Subjecting children to child pregnancies without a right to safe abortion is abuse and torture in violation of section 53 of the constitution of Zimbabwe.
The judge said that in Zimbabwe, teenage pregnancies are primarily driven by poverty, with girls from impoverished backgrounds being particularly vulnerable to early child marriages and pregnancies.
This creates a vicious cycle where young mothers, often from poor families, are compelled to raise children in a context of poverty, perpetuating the cycle.
Justice Takuva said subjecting a child to bear another child or undergo illegal abortion constitutes torture and cruel treatment. He added:
The definition of unlawful intercourse (in the Termination of Pregnancy Act) excludes unlawful and unconstitutional intercourse giving rise to pregnancy of a child below the age of 18.
To the extent that the age of sexual consent is 18, it therefore means that any intercourse with a child is unlawful and must be included as unlawful intercourse for the purposes of s 2(1) of the Act. Also, unlawful intercourse must include marital rape or rape within a marriage.
The failure to include in the definition of unlawful intercourse pregnancy of a minor, amounts to a breach of sections 81(1)(e)(f) and 18(2) of the constitution which protect the rights of children.
Allowing children to have pregnancies without an option of safe legal abortion also amounts to torture, cruel and degrading treatment in breach section 53 of the constitution of Zimbabwe.
Teenage pregnancies and failure to allow the legal safe abortions is a breach of the right to human dignity protected under section 51 of the constitution of Zimbabwe.
Quite clearly section 2(1) of the Act is also in breach of section 56(1) of the constitution in that it unlawfully discriminates between different categories of unlawful intercourse by omitting illegal and unlawful intercourse with a minor and rape within a marriage.
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