dyton mupawaenda
Mathew Masinge
THE High Court has declared a key provision that defined candidates proper for the Termination of Pregnancy Act (Chapter 15:10) as unconstitutional and invalid.
Justice Maxwell Takuva ruled that Section 2 (1) of the Act, which only defined “unlawful intercourse” as rape excluding rape victims and children below the age of 18, was no longer compatible with the Constitution.
Under the law, girls below the age of 18 and rape victims had no access to legal abortion.
Section 4 of the Act only allowed legal abortion if the pregnancy endangered the life of the woman or girl, when the child to be born is likely to suffer from physical or mental defects.
It also allowed women to abort if there is a reasonable possibility that the foetus is conceived as a result of unlawful intercourse.
In their application, Women in Law Southern Africa, Talent Group, said the law is an infringement on the rights of children.
The Minister of Health and Child Care, Parliament of Zimbabwe and the Attorney General of Zimbabwe who were cited as respondents did not oppose the application.
The Women in Law Southern Africa argued that after the Constitutional Court raised the age of consent to 18 it became clear that any sexual act with a minor is unlawful.
The ConCourt also outlawed child marriages.
“Subjecting children to child pregnancies without a right to safe abortion is abuse and torture in violation of s 53 of the Constitution of Zimbabwe.
“In my view teenage pregnancies are not in the best interests of children, therefore the law as it stands in the Termination of Pregnancy Act [Chapter 15:10] which denies children who are pregnant the right to abortion is not in the children’s best interest and therefore it is an infringement of s 81(2) of the Constitution of Zimbabwe,” ruled Justice Takuva.
The judge highlighted that all pregnancies arising from rape should be deemed unlawful.
“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 s 2(1) of the Act.
“Section 2 of the Act falls away immediately as a consequence of Constitutional Court judgments.
“It is ordered that; Section 2(1) of the Termination of Pregnancy Act [Chapter 15:10] be and is hereby declared unconstitutional and invalid,” reads the judgment.
Online Reporter