Abortion ruling stirs debate on reproductive rights

IN a landmark decision, the High Court has ruled that Zimbabwe’s abortion law is unconstitutional, specifically regarding access to abortion for minors.

The law denying access to legal abortion for children below the age of 18 and married women who are victims of marital rape was ruled as unconstitutional.

The ruling could allow access to safe and legal abortion for abused children under 18, pending confirmation by the Constitutional Court.

Zimbabwe’s Termination of Pregnancy Act has been restrictive, only allowing abortions under limited circumstances.

However, Justice Maxwell Takuva’s ruling declares Section 2(1) of the Act invalid, recognising that denying abortion access to vulnerable individuals violates their dignity and constitutional rights.

The Termination of Pregnancy Act only permits abortion in three situations: where the continuation of the pregnancy endangers the life of the woman, where there is a serious risk that the child to be born will suffer from a permanent physical or mental defect. Thirdly, where the child was conceived through rape other than rape within a marriage.

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 judgements. 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.”

Justice Takuva’s ruling, which would provide access to safe and legal abortion for abused children below 18 years of age, must be confirmed by the Constitutional Court.

The judge 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 the challenge of children delivering babies was a “major human rights issue.”

“According to Dr Nawal Nour, ‘the problem with children delivering children is that the young mothers are at a significantly higher risk than older women for debilitating illness and even death. Compared with women above 20 years of age, girls 10 – 14 years of age are 5 – 7 times more likely to die from child birth, and girls 15 – 19 years of age are twice as likely…’

“In Zimbabwe, it is well accepted that teenage pregnancies are largely as a result of poverty. Poverty is at the epi-centre of causing early child marriages because girls from indigent backgrounds are more vulnerable to pregnancies and child marriages.

“It becomes a vicious cycle in that the young girls who get pregnant and often in poor families are then forced to produce young children in a sea of poverty, and the cycle begins again. Simply put, teenage pregnancies foster poverty and cyclical reproduction of poverty as girls who marry young or are pregnant in an uneducated environment with few opportunities continue reproducing the same.”

Senior Harare lawyer Sheillah Kanyangarara welcomed the ruling, emphasising the need for Parliament to review laws to ensure women’s rights are respected.

However, she noted that the court did not address the issue of marital rape and its consequences, highlighting gaps that need attention.

Kanyangarara also called for timely investigations into rape cases, as delays often result in unwanted pregnancies.

The 2007 Supreme Court ruling allowing a woman to claim damages from the State after becoming pregnant due to rape underscores the need for timely investigations and support for victims.

The process of obtaining a legal abortion in Zimbabwe remains cumbersome, often requiring police investigations, court orders and medical approvals. – Feedback: cathymwauyakufa@gmail.com