Online Reporter
Fidelis Munyoro
Chief Court Reporter
THE High Court’s declarations that certain provisions of the Termination of Pregnancy Act are unconstitutional have been referred to the Constitutional Court for confirmation.
Justice Sylvia Chirawu-Mugomba ruled that Section 4(a) of the Act, which excludes mental health as a basis for lawful abortion, violates constitutional rights, including the rights to dignity, equality, and access to health.
The decision will only take legal effect if confirmed by the Constitutional Court. The case was brought by the Community Working Group on Health and Member of Parliament Nyasha Batisa, represented by their lawyer, Mr Tendai Biti.
They argued that the law discriminates against mentally ill women by limiting abortion access to narrow physical-health grounds, while failing to account for the impact of mental health on overall well-being.
Justice Chirawu-Mugomba agreed, stating: “It is clear that women with mental health challenges are treated differently when it comes to the permissible health-related grounds for termination.”
The judgment also addressed the definition of “unlawful intercourse” in Section 2(1) of the Act.
The provision currently fails to include sexual abuse against mentally ill women as defined under Section 106 of the Mental Health Act, which criminalises sexual relations with mental health patients.
Justice Chirawu-Mugomba found this omission unconstitutional, holding: “Excluding mental health in the definition of unlawful intercourse… denies women in such circumstances access to safe abortion services.”
In her ruling, Justice Chirawu-Mugomba highlighted the inconsistencies between the Termination of Pregnancy Act and the Mental Health Act, noting that these gaps in the law undermine the principle of equality.
She stated: “The inconsistency between these legislative frameworks undermines the principle of equality before the law.”
She also rejected the argument by the Minister of Health that mental health risks were already implicitly covered under life-threatening physical conditions, stating that the interpretation was “not explicit” and left vulnerable women unprotected.
While acknowledging that law-making is primarily the role of Parliament, the judge emphasised the judiciary’s duty to intervene when laws unjustifiably limit constitutional rights.
“Judicial intervention is necessary to uphold constitutional rights, fill legal gaps, or develop the law in line with evolving social values,” she said.
The court considered possible remedies, including “reading in” provisions to address the identified gaps in the law.
However, Justice Chirawu-Mugomba concluded that the applicants had not framed their requested relief with sufficient precision to allow for this approach.
Instead, she declared portions of Section 4(a) and Section 2(1) unconstitutional and suspended the declarations, as required by Section 175 of the Constitution, pending confirmation by the Constitutional Court.
The Constitutional Court now has the final authority to confirm or overturn the High Court’s findings.
Until the Constitutional Court issues its decision, the provisions of the Termination of Pregnancy Act remain in force.
