Authored By: Natasha Abigail Dhliwayo
University of Zimbabwe
Citation: HH 552-24, HH7364/23
Court Name: High Court of Zimbabwe
Judge: Takuva J
Bench: Constitutional Court Application
Date of Judgement: 22 November 2024
Parties Involved:
Applicants
- Women in Law in Southern Africa,
- Talent Forget
Respondents
- Minister of Health and Child Care
- The Parliament of the Republic of Zimbabwe
- The Attorney General of Zimbabwe
Facts of the case
This was a constitutional application lodged on behalf of public interest due to the significant rise in illegal teen abortions and teenage mortalities. In respect of which the applicants seeked to persuade the court to outlaw or read in to the definition of “unlawful intercourse” contained in s 2(1) of the Termination of Pregnancy Act to allow children below the age of 18 and married women, who are victims of marital rape to have access to legal abortion as provided for in terms of s 4 of the Act.
This application sorted to harmonize determination of pregnancy act with this evolve constitutional jurisprudence. This application was a sequel to the protection of children, granted in the two constitutional court rulings in the child marriage cases of. M & Anor v Minister of Justice Legal & Parliamentary Affairs & Ors 2016(2) ZLR 45 (CC) and the age of sexual consent case of Diana Eunice Kawenda v Minister of Justice Legal and Parliamentary Affairs & Ors CCZ 3/22.
Issues Raised:
- Whether the definition of “unlawful intercourse” in Section 2 (1) of the Act was unconstitutional.
- Whether the exclusion of marital rape and pregnancies of minors under 18 violated the right to dignity (section 51), protection from cruel/degrading treatment (Section 53) and equal protection of the law (Section 56)
- Whether the Act failed to uphold the “best interests of the child” as required by Section 81 of the Constitution
Arguments of the Parties
They argued that because the age of consent is 18, any sexual act with a minor is “unlawful intercourse” and should qualify them for sale legal abortion. The Applicant mounted a multipronged constitutional attack arguing that the section violated
The rights of the child safeguarded by Section 81 of the Constitution of Zimbabwe in that this section in question was not in the child’s best interests particularly the teen mother. As forcing a child to carry a pregnancy is a form of sexual exploitation abuse and maltreatment it also severely affects the child’s right to healthcare and education.
Furthermore they argued that failure for the teen mothers to have access to the abortion services was a form of torture as it violated Section 53 as this bar constituted torture as subjecting a child to the physical and psychological trauma or forced pregnancy, childbirth or unsafe, abortion constitutes torture or cruel inhuman or degrading treatment or punishment
Also, they argued on how barring violated their right to human dignity, as the low striped impregnated, minor and married rape victims of their inherent dignity by denying them illegal health service available to other victims, reducing them to second class victims. As they contended that forcing children to carry pregnancies to term equated to “children delivering children.” The definition created an arbitrary in unjustifiable discrimination between different categories of victims of unlawful intercourse e.g. who is unmarried versus one who is married.
ARGUMENTS BY THE RESPONDENTS
Notably the first, second and third respondents did not oppose the application, acknowledging the need for constitutional alignment
JUDGEMENT
The court declared that section 2(1) Termination of Pregnancy Act was unconstitutional and invalid. However, it rejected the applicant’s prayer to read in a specific definition. Instead, it chose the remedy of striking down the section. Giving it to parliament the second respondent to draft and pass a constitutionally compliant definition
LEGAL REASONING / RATIO DECIDENDI
The court provided a robust rights-based analysis that are central and upholding of the girl child’s human rights.
The primacy of children’s right the court began by reaffirming the special protected status of children and Zimbabwe law. The court cited section 19 and 81 of the Constitution of Zimbabwe and international instruments like the CRC.On how the best interests of the child are paramount. Judge Takuva noted that teenage pregnancy isn’t just a social issue, but a fundamental human rights crisis linked to poverty, exploitation, and systemic abuse.
The court found on section 81 children’s rights that denying minor’s access to abortion was not in the child-based interest and was a direct infringement of the right to protection from abuse and healthcare. Excellent medical evidence on the high mortality risks for young mothers
On section 53 free freedom from torture the judgment powerfully stated there is no doubt that it is torture, cruel, and degrading treatment for child to carry another child for a child to give birth to another child or for a child to be forced to illegally to abort. As he argued that the child’s best interests are paramount.
On section 51 human dignity, the court held that the Impact provision at affected the dignity of the affected groups linking dignity to the very right to life itself. The court referred to the words of Dr Nour, “The problem with children delivering children is that young mothers are at a significantly higher risk than older women for debilitating illness and even death.
The court relied on the case of Diana Eunice Kawenda v Ministry of Justice, Legal & Parliamentary Affairs& Others CCZ 3/22 as it reasoned that once the Constitutional Court had outlawed child marriages as it did in the Mudzuri case. Once the court outlawed and raised the age of sexual consent to 18 years as it did in the Diana case it means that sexual intercourse should be included in the definition of “unlawful intercourse” in S 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 definition of a lawful intercourse in any law pertaining to abortion access must be interpreted constitutionally, and therefore encompasses firstly, married to rape secondly any sexual intercourse with the person below the age of 18 it started to provision that excuse this act is traditional unconstitutional.
Conclusion
This case placed emphasis for reproductive rights. As it contributed significantly on judicial expansion of abortion rights in Zimbabwe’s history. It highlighted the progressive interpretation the judgment exemplifies a living deduction approach adapting old legislation to new constitutional values and social reality. It highlighted the core issues of judicial difference versus activism. lnstead of the bench to opt for striking down the law and rewriting it. The court balanced its constitutional mandate with respect of separation of powers placing the corrective duty on the legislature to deal with the impugned section. The practical impact of the judgment highlighted the next frontier as it aimed ensuring practical access to safe abortion services for these newly recognized classes of victims across the country.
