Zimbabwe’s termination of pregnancy laws perpetuate the stigmatization of people with disabilities

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Every third of December, Zimbabwe joins the world in commemorating the International Day of Persons with Disabilities (PWDs).

The annual observance of this day was proclaimed in 1992 by the United Nations General Assembly with the aim of promoting an understanding of disability issues and mobilizing support for the dignity, rights, and well-being of persons with disabilities.

Since time immemorial, PWDs have faced marginalization in economic, social, cultural, and political facets of life. Their exclusion comes about because of a number of reasons, the major one being the stigmatization of disability.

Stigmatization is the assignment of negative perceptions to an individual because of perceived differences from the population at large or regarding, viewing, or characterizing something or someone as contemptible or publicly disapproving of something or someone.

In 2013 Zimbabwe ratified the United Nations Convention on the Rights of Persons with Disabilities (2006) (UNCRPD) and its Optional Protocol.

Furthermore, the Constitution which came into effect in 2013, lists as one of the country’s founding values and principles the recognition of the rights of persons with disabilities and, mainstreaming disability rights issues as a national objective.

This is a significant advancement towards recognizing the equality and dignity of persons with disabilities and providing measures that will enable the full realization of their human rights.

In June 2021, President Emmerson Mnangagwa launched the National Disability Policy (NDP). The policy which is a measure to domesticate the provisions of the UNCRPD seeks to address the oppression, marginalization, and discrimination that is experienced by persons with disabilities.

The steps being taken by Zimbabwe as outlined by the NDP are quite commendable. However, it is the author’s view that it falls short in that it fails to adequately acknowledge and put in place measures to address the major cause of marginalization and discrimination which is stigmatization.

The current laws on the termination of pregnancy in Zimbabwe can be identified as being one of the major perpetrators of the stigmatization of disability.

Section 48 of the Zimbabwean Constitution provides for the recognition and protection of the right to life including the lives of unborn children. Termination of pregnancy is generally illegal in Zimbabwe except in three circumstances one of which is ‘where there is a serious risk that the child to be born will suffer from a physical or mental defect of such a nature that he will permanently be seriously handicapped’.

Handicapped means having a physical or mental disability. This practically means that if a medical practitioner diagnoses the unborn child of any mental or physical disability, the mother is allowed by law to terminate the pregnancy.

What the law is effectively saying in this provision is ‘no one is allowed to take away any person’s life including the life of an unborn child except if the child has a disability’ or ‘the law protects the life of every person including the life of an unborn child except if that unborn child has a disability in which case it is okay to take away their life’.

This then raises questions as to what the law is saying about disability and how this then affects people living with disabilities. The law is assigning negative perceptions of disability and persons with disabilities, characterizing disability or people with disabilities as contemptible and publicly disapproving of disability and/or persons with disabilities.

This perpetuates the discriminatory notion that disabilities are an abnormal shameful condition and that people with disabilities are not as many human beings as everyone else and hence do not enjoy the same protection of the law as does everyone else.

This provision effectively strips people with disabilities of their dignity and recognition as equal human beings and no substantial empowerment and recognition of persons with disabilities and rights of persons with disabilities can ever be achieved and embedded in society until such laws are repealed.

The issue of the law containing discriminatory provisions which perpetuate stigmatization is not a first of its kind. Zimbabwe recently decriminalized the deliberate transmission of HIV/AIDS. The law criminalizing the deliberate transmission of HIV was enacted back in the early 2000s when HIV was viewed as a death sentence hence people infected with HIV/AIDS were viewed as a threat to human life hence potential criminals.

With the moving of time and more scientific and medical research being done, society’s view of HIV/AIDS also changed and criminalization of the act of infecting one with HIV/AIDS became unwarranted. All it did was perpetuate the stigmatization of HIV/AIDS and people living with the condition and this was countering all destigmatization and empowerment campaigns.

The same can be said of disabilities. With the advancement of scientific and medical research and human rights, society’s views of disability have to change. It is an obligation under the UNCRPD for all State parties to abolish existing laws that constitute discrimination against persons with disabilities.

The Government of Zimbabwe is taking a human rights approach to disability rights and the first step is an acknowledgment of the inherent dignity, worth, and equality of all human beings, and the fundamental human rights and freedoms of all people including those of persons with disabilities.

It would, therefore, be contrary to its values to maintain a law that strips persons with disabilities of their dignity and denies them equal protection of the law.

There is a need to repeal this particular provision of the Termination of Pregnancy Act if ever Zimbabwe is to achieve a society that recognizes the equality and inherent dignity of persons with disabilities.