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 judgment, 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 due to 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: "Because 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 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 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 epicenter of causing early child marriages because girls from disadvantaged 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 abort because of cruel circumstances illegally."

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 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 of section 53 of the constitution of Zimbabwe.
"Teenage pregnancies and failure to allow 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.