Audrey Galawu
Women and Law in Southern Africa last week approached the High Court of Zimbabwe with an application challenging the constitutional validity of section 2(1) of the Termination of Pregnancy Act.
WLSA is challenging the Act on the basis that it excludes grounds for termination of pregnancy by omitting illegal and unlawful intercourse with a minor and rape within a marriage as grounds for Termination of Pregnancy.
In court papers, WLSA mentioned the Ministry of Health and Child Care, Parliament of Zimbabwe and the Ministry of Justice, Legal and Parliamentary Affairs as respondents.
The organisation stated that the application is important in light of the many cases of teenage pregnancies in Zimbabwe, illegal teen abortions and teenage mortalities.
“This is an important constitutional application in respect of which the Applicants seek to persuade the court to outlaw or read in to the definition of ‘unlawful intercourse’ contained in section 2(1) of the Termination of Pregnancy Act [Chapter 15:10] (hereinafter referred to as the “Act”) so as to allow children below the age of 18 and married women, who are victims of marital rape to have access to legal abortion as provided for in terms of section 4 of the Act.
“The Applicants seek to persuade the court that this application is a logical sequel to the protection of children that the court has offered and granted in the child marriage case of M and Anor v Minister of Justice, Legal and Parliamentary Affairs and Ors 2016(2)ZLR45 (CC) and the age of sexual consent case of Diana Eunice Kwenda v Minister of Justice, Legal and Parliamentary Affairs and Ors, CCZ3/22.
“More than that, the application takes into account the fact that marital rape having been criminalised, victims of marital rape should also have access to legal abortion,” WLSA said.
The organisation further stated that children hold a special and decisive place in the jurisprudence of Zimbabwe and they have rights that are protected by the Constitution.
Speaking to Zim Now, Women Action Group, Edna Masiyiwa said The Termination of Pregnancy Act needs to be reviewed as it is restrictive.
Masiyiwa believes the circumstances where abortion is allowed should be increased, not only to focus on rape, incest and health reasons.
“Society should also be educated on the current law because we have seen women who are eligible to get abortion not getting it because they are not aware of the provisions for the current law.
“The sentencing for infanticide is less heavy compared to that of abortion and this does not make sense. Women should be allowed to abort early in the pregnancy without questions asked. Allowing safe abortion will reduce the burden of treating complications of unsafe abortions.
“Currently, it’s the poor who are suffering because they cannot afford the fees charged by doctors for abortion,” she noted.
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