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6 The Harare High Court has declared a section of Zimbabwe’s Termination of Pregnancy Act unconstitutional, marking a historic ruling with profound implications for the rights of children and women.
Justice Maxwell Takuva’s judgment on November 22 struck down section 2(1) of the Act, which denied access to legal abortion for children under 18 and married women who are victims of marital rape.
Zimbabwe’s abortion laws are among the strictest globally, permitting termination only in cases where the pregnancy endangers the woman’s life, where the fetus may suffer a permanent defect, or where the pregnancy results from rape—excluding marital rape.
Justice Takuva ruled that these provisions violated constitutional guarantees of dignity, protection, and equality.
“In my view, the dignity of adolescent children who are impregnated, and married women who are raped, is adversely affected by section 2(1) of the Act,” he said.
“The Zimbabwe constitution protects the right of every person to dignity in their private and public life. This foundational right has been equated with the right to life.” The ruling aligns with prior Constitutional Court decisions that outlawed child marriages and raised the age of sexual consent to 18.
Justice Takuva emphasized that any sexual intercourse with minors is unlawful, making pregnancies resulting from such acts subject to the provisions for safe and legal abortion.
“Subjecting children to child pregnancies without a right to safe abortion is abuse and torture in violation of section 53 of the constitution of Zimbabwe,” he said.
The judge highlighted that teenage pregnancies perpetuate poverty cycles, disproportionately affecting girls from marginalized communities. Medical evidence presented underscored the dangers of child pregnancies.
Justice Takuva cited research indicating that girls aged 10–14 are five to seven times more likely to die from childbirth than women over 20, while those aged 15–19 are twice as likely. The ruling also extended to marital rape, which recent legal amendments recognized as a crime.
Justice Takuva criticized the omission of marital rape from the Act’s definition of unlawful intercourse, stating that it discriminates against victims and breaches constitutional protections for children and women.
Human rights lawyer Tendai Biti, representing Women in Law in Southern Africa and Talent Forget, hailed the judgment as a victory for the girl child and women in abusive relationships. “Children were dying by the thousands in illegal and unsafe abortions. This small victory hopefully closes the chapter of child mothers in Zimbabwe,” Biti said.
Justice Takuva concluded, “Teenage pregnancies and the failure to allow legal safe abortions breach the right to human dignity protected under section 51 of the constitution. This ruling is about restoring dignity and protecting lives.”
