The abortion law ruling has been referred to the Constitutional court after the High Court has declared key parts of the nation’s Termination of Pregnancy Act to be in conflict with the constitution. The groundbreaking judgment, which centres on the exclusion of mental health as a valid ground for abortion, has now been forwarded to the Constitutional Court for final confirmation. The case was spearheaded by the Community Working Group on Health and MP Nyasha Batisa, who argued that the current legislation discriminates against some of society’s most vulnerable women.
The presiding judge, Justice Sylvia Chirawu-Mugomba, found that Section 4(a) of the Act, which permits abortion only on narrow physical health grounds, unjustly violates the constitutional rights to dignity, equality, and comprehensive healthcare. She firmly rejected the state’s attempt to downplay the significance of mental wellbeing.
A Question of Equality and Dignity
The court heard powerful arguments that the law creates a two-tier system, unfairly treating women suffering from mental health conditions differently from those with physical ailments. Justice Chirawu-Mugomba concurred with this assessment, stating:
“It is clear that women with mental health challenges are treated differently when it comes to the permissible health-related grounds for termination.”
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Their legal representative, Advocate Tendai Biti, emphasised that this omission is not just a legal technicality but a profound failure to recognise that health encompasses both mind and body.
Furthermore, the judge dismantled the argument presented by the Minister of Health, who claimed that mental health risks were indirectly covered under existing clauses concerning life-threatening physical conditions. Justice Chirawu-Mugomba deemed this interpretation dangerously vague, leaving women without explicit legal protection. She stated that the minister’s view was “not explicit” and consequently failed to safeguard vulnerable individuals.
A Glaring Omission in the Law
A second critical flaw was identified in the Act’s definition of “unlawful intercourse.” The court found that the definition astonishingly fails to incorporate protections for mentally ill women that are already enshrined in the Mental Health Act, which criminalises sexual relations with patients. This legislative gap, the judge ruled, has dire consequences, effectively blocking access to safe abortions for women who become pregnant through such abuse.
On this point, Justice Chirawu-Mugomba was unequivocal, holding:
“Excluding mental health in the definition of unlawful intercourse… denies women in such circumstances access to safe abortion services.” She highlighted the untenable position created by contradictory laws, noting: “The inconsistency between these legislative frameworks undermines the principle of equality before the law.”
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Abortion Law On The Road to the Constitutional Court
While acknowledging that creating law is primarily the domain of Parliament, the judge affirmed the judiciary’s vital role as a guardian of fundamental rights.
“Judicial intervention is necessary to uphold constitutional rights, fill legal gaps, or develop the law in line with evolving social values,” she asserted.
The ruling has been suspended pending the confirmation hearing, meaning the current laws remain in effect for now. All eyes now turn to the Constitutional Court, which holds the ultimate power to either embed this progressive interpretation into law or overturn the High Court’s historic findings.
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The post Abortion Law Ruling Referred To Constitutional Court For Confirmation appeared first on iHarare News.
