Decision Alert: Landmark Decision Expands Access to Legal Abortion in Zimbabwe in Suit Filed by Our Implementing Partner in Zimbabwe
Case: Women in Law in Southern Africa & Talent Forget v Minister of Health and Child Care, Parliament of Zimbabwe & Attorney General of Zimbabwe
Court: High Court of Zimbabwe
Date: 22 November 2024
Issue:
Whether Section 2(1) of the Termination of Pregnancy Act, which defines “unlawful intercourse” to exclude instances of sexual intercourse with minors and marital rape, is constitutional
Decision Overview:
In a historic ruling, the High Court of Zimbabwe has declared Section 2(1) of the Termination of Pregnancy Act unconstitutional. The provision previously failed to classify pregnancies resulting from marital rape and sexual activity with minors ( persons under 18) as “unlawful intercourse,” thereby denying these groups access to safe, legal abortion services under the law. Our Litigating Reproductive Justice in Africa (LIRA) Programme implementing partner in Zimbabwe filed the case.
Justice Takuva found that the omission violated the constitutional rights of children and women, including the right to dignity (Section 51), protection from cruel and degrading treatment (Section 53), and equal treatment under the law (Section 56(1)). The judgment emphasised the State’s duty to protect children from sexual exploitation and ensure their best interests, as enshrined in Section 81 of the Constitution.
The court declared Section 2(1) of the Act unconstitutional and left it to the legislature to propose alternative provisions. As the legislative process is ongoing, the court “read in” marital rape and rape of minors as indications permitting the provision of abortion and post-abortion care under Zimbabwe’s Termination of Pregnancy Act.
Significance:
This ruling addresses the urgent need to reduce teenage pregnancies and illegal abortions in Zimbabwe. By broadening the definition of “unlawful intercourse,” the decision enables victims of statutory rape and marital rape to access safe abortion services. It also reinforces protections for minors by recognising pregnancies under the age of consent as inherently unlawful. The decision is a significant victory for Ahaki and WLSA under our LIRA programme in safeguarding reproductive rights and addressing the systemic issues driving teenage pregnancies and marital abuse in Zimbabwe.
