HARARE
–
A
law
denying
access
to
legal
abortion
for
children
below
the
age
of
18
and
married
women
who
are
victims
of
marital
rape
is
unconstitutional,
the
Harare
High
Court
has
declared
in
a
landmark
ruling.
Zimbabwe
has
strict
abortion
laws.
The
Termination
of
Pregnancy
Act
only
permits
abortion
in
three
situations:
where
the
continuation
of
the
pregnancy
endangers
the
life
of
the
woman
concerned;
where
there
is
a
serious
risk
that
the
child
to
be
born
will
suffer
from
a
permanent
physical
or
mental
defect
or
where
the
child
was
conceived
through
rape
other
than
rape
within
a
marriage,
Justice
Maxwell
Takuva,
in
a
November
22
judgement,
declared
section
2(1)
of
the
Termination
of
Pregnancy
Act
[Chapter
15:10]
“unconstitutional
and
invalid.”
He
ruled:
“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.
“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.”
Justice
Takuva’s
ruling,
which
would
provide
access
to
safe
and
legal
abortion
for
abused
children
below
18
years
of
age,
awaits
confirmation
by
the
Constitutional
Court.
The
judge
said
section
81
of
the
Zimbabwe
constitution
provides
that
every
child
has
a
right
to
be
protected
from
sexual
exploitation.
He
added:
“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
section
2(1)
of
the
Act.
“Once
it
is
accepted
that
the
age
of
sexual
consent
consistent
with
section
81
of
the
constitution
is
18,
it
becomes
clear
that
any
sexual
act
with
a
minor
and
indeed
any
pregnancy
arising
thereto,
is
unlawful
and
illegal.
“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.”
The
judge
said
the
challenge
of
children
delivering
babies
was
a
“major
human
rights
issue.”
“According
to
Dr
Nawal
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.
Compared
with
women
above
20
years
of
age,
girls
10
–
14
years
of
age
are
5
–
7
times
more
likely
to
die
from
child
birth,
and
girls
15
–
19
years
of
age
are
twice
as
likely…’
“In
Zimbabwe,
it
is
well
accepted
that
teenage
pregnancies
are
largely
as
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.
Simply
put,
teenage
pregnancies
foster
poverty
and
cyclical
reproduction
of
poverty
as
girls
who
marry
young
or
are
pregnant
in
an
uneducated
environment
with
few
opportunities
continue
reproducing
the
same.”
The
judge
said
there
could
be
no
doubt
that
“it
is
torture,
cruel
and
degrading
treatment
for
a
child
to
carry
another
child,
for
a
child
to
give
birth
to
another
child
or
for
a
child
to
be
forced
to
illegally
abort
because
of
cruel
circumstances.”
He
added:
“The
definition
of
unlawful
intercourse
(in
the
Termination
of
Pregnancy
Act)
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.
Also,
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
sections
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
section
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
section
51
of
the
constitution
of
Zimbabwe.
“Quite
clearly
section
2(1)
of
the
Act
is
also
in
breach
of
section
56(1)
of
the
constitution
in
that
it
unlawfully
discriminates
between
different
categories
of
unlawful
intercourse
by
omitting
illegal
and
unlawful
intercourse
with
a
minor
and
rape
within
a
marriage.”
Human
rights
lawyer
Tendai
Biti,
who
argued
the
matter
on
behalf
of
Women
in
Law
in
Southern
Africa
and
Talent
Forget,
said
the
ruling
would
“protect
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.
Chris
Kathryn