HARARE
—
The
High
Court
has
delivered
a
landmark
ruling
declaring
parts
of
Zimbabwe’s
abortion
law
unconstitutional,
finding
that
provisions
of
the
Termination
of
Pregnancy
Act
violate
several
fundamental
rights,
particularly
the
rights
of
mentally
ill
women
and
victims
of
sexual
abuse
in
mental
health
institutions.
Justice
Slyvia
Chirawu-Mugomba,
handing
down
judgment,
ruled
that
section
4(a)
of
the
law
governing
the
circumstances
under
which
a
pregnancy
may
be
lawfully
terminated
“to
the
extent
that
it
excludes
mental
health”
fails
to
meet
constitutional
standards
and
unjustifiably
limits
key
rights
such
as
dignity,
equality,
and
the
right
to
health.
The
applicants,
the
Community
Working
Group
on
Health
and
Member
of
Parliament
Nyasha
Batisa,
challenged
the
constitutionality
of
the
law,
arguing
that
it
discriminates
against
mentally
ill
women
by
permitting
pregnancy
termination
only
under
narrow
physical-health
exceptions.
They
sought
declarations
that
both
s
4(a)
and
the
definition
of
“unlawful
intercourse”
in
s
2(1)
of
the
Act
are
unconstitutional.
In
a
detailed
25-page
ruling,
Justice
Chirawu-Mugomba
found
that
the
law’s
failure
to
recognise
mental
health
as
a
basis
for
accessing
safe
and
lawful
abortion
imposes
a
discriminatory
and
unconstitutional
burden
on
women
with
mental
health
challenges.
The
judge
noted
that
the
applicants
had
“well-articulated
the
impact
of
the
exclusion
of
mental
health
as
a
ground
to
access
safe
abortion,”
concluding:
“Therefore,
s
4(a)
in
my
view,
to
the
extent
that
it
excludes
mental
health,
does
not
meet
the
standards
enunciated
in
the
constitution…
“It
is
clear
that
women
with
mental
health
challenges
are
treated
differently
when
it
comes
to
the
permissible
health-related
grounds
for
termination.”
Justice
Chirawu-Mugomba
rejected
the
argument
by
the
minister
of
health
that
mental
health
risks
were
already
implicitly
covered
under
“life-threatening”
physical
conditions,
holding
that
such
an
interpretation
would
be
“not
explicit”
and
left
vulnerable
women
without
clear
legal
protection.
She
emphasised
that
mental
health
is
integral
to
overall
health,
citing
evidence
of
“genuine
challenges
women
experience
with
mental
health,
including
those
that
may
arise
after
childbirth.”
The
judge
also
held
that
the
definition
of
“unlawful
intercourse”
in
s
2(1)
is
unconstitutional
because
it
fails
to
include
sexual
abuse
defined
under
s
106
of
the
Mental
Health
Act,
which
criminalises
sexual
intercourse
with
mental
health
patients.
The
judge
said
in
the
November
11
ruling:
“Excluding
mental
health
in
the
definition
of
unlawful
intercourse,
as
proscribed
in
s
106…
denies
women
in
such
circumstances
access
to
safe
abortion
services.”
She
found
that
the
omission
violates
multiple
constitutional
rights,
including
the
right
to
life
(s
48),
dignity
(s
51),
equality
(s
56),
and
reproductive
health
(s
76),
noting
that
mentally
ill
women
“face
legal
and
procedural
barriers
to
accessing
necessary
reproductive
healthcare.”
The
judgment
sharply
criticised
the
inconsistency
between
the
Termination
of
Pregnancy
Act
and
the
Mental
Health
Act,
observing:
“The
inconsistency
between
these
legislative
frameworks
undermines
the
principle
of
equality
before
the
law.”
While
acknowledging
parliament’s
primary
role
in
law-making,
the
judge
said
that
courts
are
constitutionally
required
to
intervene
where
rights
are
unjustifiably
limited.
She
noted:
“Judicial
intervention
is
necessary
to
uphold
constitutional
rights,
fill
legal
gaps,
or
develop
the
law
in
line
with
evolving
social
values.”
The
court
considered
whether
to
“read
in”
new
provisions
–
a
remedy
used
where
a
statute
is
unconstitutional
due
to
an
omission
–
but
concluded
that
the
applicants
had
not
framed
their
requested
relief
with
sufficient
precision.
The
judge
ultimately
declared
portions
of
s
4(a)
and
s
2(1)
unconstitutional
but
suspended
the
declarations,
as
required
by
section
175
of
the
constitution,
pending
confirmation
by
the
Constitutional
Court.
The
judge
ordered:
“The
above
declarations
of
constitutional
invalidity
are
suspended
until
such
time
as
the
Constitutional
Court
has
confirmed
the
same…
The
above
order…
is
referred
to
the
Constitutional
Court
for
confirmation.”
No
order
as
to
costs
was
made.
Rights
lawyer
Tendai
Biti
brought
the
application
on
behalf
of
Batitsa
and
the
Community
Working
Group
on
Health.