Common Law with Mike Murenzvi
“Abortion is part of being a mother and of caring for children, because part of caring for children is knowing when it’s not a good idea to bring them into the world.” – Katha Pollitt
In a November 2024 ruling on the expansion of abortion rights, a High Court judge determined that the definition of unlawful intercourse in the Termination of Pregnancy Act (TOPA) was too narrow and, therefore, unconstitutional. This decision marked the first step toward expanding abortion rights in cases where minors become pregnant.
The case
Rights group Women in Law Southern Africa (WLSA) and Talent Forget brought a constitutional application against the Minister of Health and Child Care, Parliament, and the Attorney-General. The group sought to either change the definition of unlawful intercourse in the TOPA or declare it unconstitutional and force Parliament to amend it to meet minimum standards set by the Constitution. The case was unopposed and it was up to Justice Maxwell Takuva to review the arguments made in the application and make a ruling.
The case forms part of a sequel to the public interest litigation in previous years on ending child marriage and aligning the age of sexual consent to the legal age of majority. It sought to allow children under the age of eighteen years and those who experienced marital rape to be included in the categories for legally sanctioned abortions.
Section 4 of TOPA says that, among other reasons, a pregnancy may be terminated “where there is a reasonable possibility that the foetus is conceived as a result of unlawful intercourse.”
The definition of “unlawful intercourse” is “rape other than rape within a marriage and sexual intercourse within a prohibited degree or relationship other than sexual intercourse with the persons referred to in paragraphs (i) or (j) of subsection (1) of Section 75 of the Criminal Code.”
The applicants argued that the failure of the definition to include unlawful intercourse pregnancy of a minor breached children’s Constitutional rights, especially the rights to protection from sexual exploitation and the right to healthcare services. Furthermore, “allowing children to have pregnancies without an option of safe legal abortion also amounts to torture, cruel and degrading treatment in breach s53 of the Constitution of Zimbabwe. Teenage pregnancies and failure to allow legal and safe abortions is a breach of the right to human dignity protected under Section 51 of the Constitution of Zimbabwe.”
In his judgment, Justice Maxwell Takuva agreed with the applicants. In his view, teenage pregnancies are not in the best interests of children. Therefore, the law as it stands in the TOPA which denies children who are pregnant the right to abortion is not in the children’s best interest and is an infringement of Section 81(2) of the Constitution (A child’s best interests are paramount in every matter concerning the child).
“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.”
“In the same vein, once the legislature has outlawed marital rape as it did with the amendments to the law, it follows then that s (2)(1) should be set aside.”
On the final order, the judge decided that the court does not write legislation, it only interprets it or strikes it down. He rejected the applicants’ first option of reading in the words, “sexual intercourse with a minor” and the inclusion of marital rape. He took the second option of declaring Section 2(1) of the TOPA unconstitutional and invalid.
Unintended overreach in judgment
In my opinion, the ruling overreached by declaring Section 2(1) of the TOPA entirely unconstitutional and invalid when the case only argued that the definition of unlawful intercourse within that section was the issue.
Section 2(1) of the TOPA contains the definitions of several terms used within the Act. By declaring all these as unconstitutional, instead of just the specific term, it may render the entire Act as inoperable.
A suspended win
By law, any ruling of constitutional invalidity by the High Court only takes effect if confirmed by the Constitutional Court (ConCourt). This process happens in a separate hearing of the matter in which the ConCourt may ask the parties for further arguments to further develop the case.
In this case, since the Ministry, Parliament, and the Attorney-General did not file any opposition, they may only be asked about how to approach the corrective action. This assumes that the Constitutional Court agrees with the High Court’s judgment.
Using previous cases as a reference, the ConCourt is often known to agree with the High Court’s rulings and only in certain circumstances will it amend or limit the application of such ruling. Given the excessive reach of the High Court ruling, it is quite likely that the final ConCourt judgment will be limited specifically to the definition of “unlawful intercourse”.
It is important to note that the Constitutional Court typically suspends the implementation of its final judgment for 12 months. This pause allows Parliament and the Executive to properly amend the problematic law in line with the judgment. This practice aligns with the understanding that the Court does not create laws; that responsibility lies with the Legislature, as part of our system that separates powers among the three branches of government.
Possible complications
History has shown us that the Executive and Parliament often lack the impetus to take action after such court cases. A May 2022 ruling striking down the old age of sexual consent laws was only rectified with a new law in September 2024, 483 days after the judgment came into effect. During that time, children were unprotected from sexual exploitation.
The 12-month suspension period was wasted and there is a real risk that it will happen again with this case. If that happens, unlawful intercourse will be removed as a valid reason for legal abortion until a new law reinstates it.
One would think an amendment to the TOPA to give effect to this judgment would be an easy fix. It’s just rewriting a definition, and even with Parliamentary bureaucracy, three months is more than adequate time to complete the process.
Zimbabwean society has a complicated relationship with abortion. On the one hand, the society holds itself to be conservative with significant Judeo-Christian views such that the thought of even widening abortion access may be viewed as unconscionable. On the other hand, there are many unsafe and illegal abortions happening daily whose true statistics will never be known.
At the same time, teenage pregnancies have been on the rise with the United Nations Population Fund (UNFPA) reporting a teenage pregnancy prevalence rate of nearly 24%. Furthermore, it reported that more than half of the pregnancies were unintended and a quarter of them were terminated illegally.
The public hearings that will inevitably be conducted on the amendments will be heated, pitting the right to life of a foetus against the sexual and reproductive rights of the pregnant minor child. A large section of society also doesn’t believe that marital rape exists. Once a woman is married, some in society argue, she must submit to the will of her husband and acquiesce to his sexual demands at any time. But it is the adolescent abortions that will be of greatest argument. The view that the person responsible for the pregnancy must marry her is often held sacrosanct.
Access limited by TOPA and bureaucracy
The TOPA, while allowing limited access to abortions, sets stringent conditions when a pregnancy is a result of unlawful intercourse.
A magistrate may only issue a certificate authorising termination after being satisfied that:
- A complaint alleging unlawful intercourse has been lodged with the authorities; and
- The authorities have presented evidence to the magistrate supporting the allegations that there was, most likely, unlawful intercourse and the magistrate has interrogated the woman and any other relevant person in the matter and there is reasonable possibility that the pregnancy is a result of unlawful intercourse; and
- In the case of incest, the woman is related within the prohibited degree with the alleged incestuous partner; and
- In the case of alleged rape or incest, the woman makes a statement under oath that the pregnancy is the result of such intercourse.
Failure to meet these requirements is punishable by imprisonment of up to 5 years or a fine of up to US$1,000, or both.
The biggest obstacle is getting the authorities to conduct a thorough investigation and submit evidence to a magistrate in a timely manner. This is followed by the need for the magistrate to hold a hearing and, finally, to issue a certificate of authorization. All of these steps must occur within 12 weeks of the pregnancy to improve the chances of a successful abortion while minimizing risks to the woman. As mentioned earlier, the likelihood of receiving such a certificate in time is extremely low.
Proactive human rights approach
It would be wonderful if Parliament would take a proactive human rights approach to this critical issue and not wait to be sued to act. Here they have a chance to engage the public and start drafting prospective legislative changes that meet the constitutional test and address any public concerns.
This isn’t about carte blanche access to abortions but making them available to those in desperate need.
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Mike Murenzvi writes in his personal capacity and his views are not associated with any organisation he is, or may be, affiliated with.
