The High Court has ruled that a crucial provision of the Termination of Pregnancy Act (Chapter 15:10) is unconstitutional and invalid.
Justice Maxwell Takuva concluded that Section 2 (1) of the Act, which defined “unlawful intercourse” solely as rape and excluded rape victims and minors under 18 years of age, no longer aligns with the Constitution.
Under the previous law, girls under the age of 18 and rape survivors were denied access to legal abortions. The Act only permitted abortion in cases where the pregnancy posed a risk to the woman’s life, or if the child was expected to have serious physical or mental disabilities. It also allowed abortion in cases where the pregnancy was the result of unlawful intercourse.
Women in Law Southern Africa, along with the Talent Group, filed an application arguing that the law infringed on the rights of children. The Ministry of Health and Child Care, the Parliament of Zimbabwe, and the Attorney General did not oppose the application.
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The legal group argued that following the Constitutional Court’s decision to raise the age of consent to 18, any sexual act with a minor is considered unlawful. Additionally, child marriages were declared illegal.
“Subjecting children to pregnancies without the right to a safe abortion constitutes abuse and torture, violating Section 53 of the Constitution,” the group argued.
Justice Takuva agreed, stating that teenage pregnancies are not in the best interest of children. The judge ruled that the law as it stood, which denied pregnant minors the right to an abortion, violated Section 81(2) of the Constitution, which protects children’s rights.
The judge further emphasized that any pregnancy resulting from rape should be treated as unlawful. “Any sexual activity with a minor is unconstitutional, and therefore, any pregnancy resulting from such acts must be considered unlawful intercourse for the purposes of Section 2(1) of the Act,” he stated.
As a result, Section 2(1) of the Termination of Pregnancy Act has been declared unconstitutional and invalid.
