The Harare High Court has declared unconstitutional a law that restricts access to legal abortion for minors and married women who have been raped by their husbands. This landmark ruling, however, awaits confirmation from the Constitutional Court before it takes effect.
Under the existing Termination of Pregnancy Act, abortion was permitted only in limited circumstances: when the woman’s life was at risk, when there was a serious possibility of the child suffering permanent physical or mental defects, or in cases of rape excluding marital rape.
The court’s recent decision expands abortion access to women victimized by marital rape, aligning with the legal recognition of marital rape as a crime in Zimbabwe. This ruling originated from a case brought by Women in Law in Southern Africa (WLSA), which sought to enhance abortion rights and post-abortion care for minors and survivors of sexual violence, specifically those affected by marital rape.
WLSA contested Section 2(1) of the Termination of Pregnancy Act, which barred legal abortion access for minors and married women raped by their spouses. The court highlighted the abusive nature of forcing children into pregnancies without the option of a safe abortion, emphasizing that such treatment violates section 53 of the Zimbabwean Constitution.
Justice Takuva pointed out that teenage pregnancies are often rooted in poverty, with girls from low-income backgrounds particularly susceptible to early marriages and pregnancies. This creates a destructive cycle, wherein young mothers, frequently from disadvantaged families, are left to raise children in impoverished conditions, perpetuating the cycle of poverty.
The judge articulated that compelling a child to bear another child or to seek an illegal abortion equates to torture and cruel treatment. He argued that the existing definition of unlawful intercourse under the Termination of Pregnancy Act neglects to consider that any sexual act involving a child under 18 is inherently unlawful. Therefore, it should be classified as such for the purposes of the Act. Additionally, the definition must encompass marital rape, recognizing that rape can occur within the bounds of marriage.
Justice Takuva further asserted that failing to include pregnancies resulting from unlawful intercourse involving minors represents a violation of sections 81(1)(e)(f) and 18(2) of the Constitution, which safeguard children’s rights. He emphasized that allowing minors to experience pregnancies without access to safe, legal abortion options constitutes torture and cruel treatment, in breach of section 53.
Moreover, he noted that the prevalence of teenage pregnancies, combined with the denial of safe abortion options, infringes upon the right to human dignity protected under section 51 of the Constitution. Clearly, Section 2(1) of the Act also contravenes section 56(1) of the Constitution by unjustly discriminating against different categories of unlawful intercourse by omitting cases involving minors and marital rape.
This ruling marks a significant step toward recognizing and protecting the rights of women and children in Zimbabwe, challenging longstanding legal barriers and advocating for justice and dignity.
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