The High Court has outlawed the law which previously blocked safe abortion for minor girls and married women who are victims of rape in a recent ruling handed down by Justice Maxwell Takuva.
In his judgement, Takuva declared section 2(1) of the Termination of Pregnancy Act [Chapter 15:10] as unconstitutional and invalid.
The landmark ruling follows an application by Women in Law Southern Africa, Talent Forget, who sued Health Minister, Douglas Mombeshora, the Parliament of Zimbabwe and Attorney General Prince Machaya seeking to overturn the existing laws.
The applicants were represented by their lawyer Tendai Biti.
In his ruling, Takuva noted that the matter was significant in light of the massive instances of teenage pregnancies in Zimbabwe, and consequently illegal teen abortions and teenage mortalities.
The applicants also mentioned that with marital rape having been criminalised, the victims should also have access to legal abortion.
Legal abortion in Zimbabwe is governed by Section 4 of the Act provides that the termination of a pregnancy shall be on the following basis.
"Where the continuation of the pregnancy so endangers the life of the woman concerned or so constitutes a serious threat of permanent impairment of physical health that the termination of pregnancy is necessary to ensure her life or physical health, as the case may be.
It also allows abortion where there is a serious risk that the child to be born will suffer from a physical or mental defect of such a nature that he will permanently be seriously handicapped or where there is a reasonable possibility that the foetus is conceived as a result of unlawful intercourse."
On the other hand, s (2)(1) of the Act defines unlawful intercourse as; "rape other than rape within a marriage and sexual intercourse within a prohibitory degree or relationship other than sexual intercourse with the persons referred to in s 71(1)(i) or (f) of the Criminal Code.
The definition of unlawful intercourse excludes unlawful and unconstitutional intercourse giving rise to pregnancy of a child below the age of 18.
To the extent that the age of sexual consent is 18, it therefore means that any intercourse with a child is unlawful and must be included as unlawful intercourse for the purposes of s 2(1) of the Act.
The applicants said unlawful intercourse must include marital rape or rape within a marriage.
"The failure to include in the definition of unlawful intercourse pregnancy of a minor, amounts to a breach of ss 81(1)(e)(f) and 18(2) of the Constitution which protect the rights of children.
"Allowing children to have pregnancies without an option of safe legal abortion also amounts to torture, cruel and degrading treatment in breach s 53 of the Constitution of Zimbabwe.
"Teenage pregnancies and failure to allow the legal safe abortions is a breach of the right to human dignity protected under s 51 of the Constitution of Zimbabwe," they submitted.
The judge concurred and upheld their arguments.
"In my view, the dignity of adolescent children who are impregnated, the dignity of married women who are raped is adversely affected by the provisions of s 2(1) of the Act.
"The Zimbabwe constitution protects the right of every person to the entitlement of inherent dignity in their private and public life and the right to have that dignity respected and protected.
"The right to dignity is foundational and has been equated with the right to life," he noted.
The judge added, "Section 2 of the Act falls away immediately as a consequence of Constitutional Court judgments.
"Firstly, once the Constitutional Court had outlawed child marriages as it did in the Mudzuri case and once the court outlawed and raised the age of sexual consent to 18 years as it did in the Diana Eunise Kamwenda case, it means that sexual intercourse with a minor is unlawful.
"Consequently, this type of unlawful intercourse should be included in the definition of 'unlawful intercourse' in section 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 ruling now awaits confirmation by the Constitutional Court.
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Tskuva also noted that child sex exposes children to the risk of HIV Aids and cervical cancer.
He said being young is a protected human right, adding that the challenge of children delivering children is a major human rights issue.
"According to Dr Nour; "The problem with children delivering children is that the young mothers are at a significantly higher risk than older women for debilitating illness and even death."
He said Compared with women above 20 years of age, girls 10 - 14 years of age are 5 - 7 times more likely to die from childbirth, and girls 15 - 19 years of age are twice as likely.
"In Zimbabwe, it is well accepted that teenage pregnancies are largely a result of poverty.
"Poverty is at the epicentre of causing early child marriages because girls from indigent backgrounds are more vulnerable to pregnancies and child marriages. It becomes a vicious cycle in that the young girls who get pregnant and often in poor families are then forced to produce young children in a sea of poverty and the cycle begins again," noted the judge.
