HARARE – The Harare High Court has struck down a law prohibiting access to legal abortion for minors and married women who are victims of marital rape, declaring it unconstitutional in a groundbreaking judgement delivered by Justice Maxwell Takuva.
The Termination of Pregnancy Act [Chapter 15:10], one of the strictest abortion laws in Zimbabwe, previously allowed abortion only under three conditions: when a pregnancy endangers the woman’s life when the unborn child is at risk of severe physical or mental defects, or when conception occurs through non-marital rape or incest.
Justice Takuva ruled on November 22 that Section 2(1) of the Act is “unconstitutional and invalid,” stating that it violates the dignity of adolescent girls and married women who experience rape.
“In my view, the dignity of adolescent children who are impregnated, and the dignity of married women who are raped, is adversely affected by the provisions of Section 2(1) of the Act,” Justice Takuva said. “The Zimbabwean constitution guarantees the right to inherent dignity in private and public life, which must be respected and protected.”
The ruling follows legal precedents that criminalised child marriages and set the age of sexual consent at 18. Justice Takuva asserted that pregnancies arising from unlawful sexual acts, including marital rape and intercourse with minors, must be included within the definition of “unlawful intercourse” for the purposes of the Act.
He further noted that forcing children to carry pregnancies to term or subjecting them to unsafe abortions constitutes “torture, cruel, and degrading treatment” in violation of constitutional provisions safeguarding children’s rights and dignity.
Teenage Pregnancies and Human Rights Violations
Justice Takuva highlighted the devastating consequences of teenage pregnancies, describing them as a major human rights issue.
Citing medical research, he warned that adolescent girls face significantly higher risks of complications and death during childbirth. “Girls aged 10 to 14 are 5 to 7 times more likely to die during childbirth compared to women over 20 years, while girls aged 15 to 19 face double the risk,” he said.
The judge linked teenage pregnancies to poverty, noting that impoverished families often push girls into early marriages, perpetuating cycles of poverty and limited opportunities.
“Teenage pregnancies foster poverty and cyclical reproduction of poverty as young girls in uneducated and underprivileged environments continue to reproduce the same,” he said.
Call for Legislative Reform
Justice Takuva emphasised that the exclusion of marital rape and pregnancies resulting from child abuse in the definition of “unlawful intercourse” breached multiple constitutional rights, including those protecting children and safeguarding against cruel treatment.
The ruling awaits confirmation by the Constitutional Court, which will determine whether these changes take effect.
A Victory for Women’s Rights
Human rights lawyer Tendai Biti, who represented Women in Law in Southern Africa and Talent Forget in the case, hailed the judgement as a significant step in protecting vulnerable groups.
“Children were dying by the thousands in illegal and unsafe abortions,” Biti said. “This small victory hopefully closes the chapter of child mothers in Zimbabwe.”
The decision has sparked widespread debate and is seen as a critical step towards addressing reproductive rights and gender-based violence in Zimbabwe.
