ConCourt Sets Aside High Court Ruling on Abortion Law

By Southerton Business Times Reporter, Harare

Zimbabwe’s Constitutional Court has set aside a High Court judgment that sought to expand access to lawful abortion, ruling that the lower court had not fully assessed whether restrictions under the country’s Termination of Pregnancy Act unjustifiably limit constitutional rights.

In a judgment delivered on Wednesday, the seven-member court declined to confirm declarations that provisions of the decades-old legislation were unconstitutional. It found that the High Court had not properly examined the constitutional rights at stake or applied the required test for determining whether limitations on those rights could be justified.

The decision does not conclusively establish that the challenged provisions are constitutional. Instead, it focuses on the legal analysis required before legislation can be declared invalid. At the centre of the case was whether mental health should independently qualify as a ground for lawful termination of pregnancy, particularly for women and girls facing severe psychiatric conditions or pregnancies arising from sexual conduct criminalised under the Mental Health Act.

Writing the judgment, Justice Bharat Patel said a law’s limitation of a constitutional right did not automatically make it unconstitutional. “A finding that the impugned legislation limits a constitutional right does not, without more, render that legislation unconstitutional,” he said. The judge emphasised that courts must assess whether a limitation satisfies section 86(2) of the Constitution, which sets out the conditions under which fundamental rights may be restricted.

Mental health at the centre of challenge

The application was brought by the Community Working Group on Health (CWGH) and legislator and human rights activist Nyasha Batitsa against the Ministers of Health and Child Care, and Justice, Legal and Parliamentary Affairs, the Attorney-General and Parliament. The applicants challenged section 4(a) of the Termination of Pregnancy Act, which regulates termination where continuation of a pregnancy endangers a woman’s life or threatens permanent impairment of her physical health.

They argued that excluding mental health as an express ground for lawful termination discriminated against women experiencing serious psychiatric conditions. Their position was that health encompasses both physical and mental well-being, and that compelling some women to continue pregnancies could expose them to severe psychological harm, including suicide risk and lasting mental health consequences.

The applicants also challenged the Act’s definition of “unlawful intercourse”, arguing that it did not adequately cover pregnancies arising from conduct criminalised under section 106 of the Mental Health Act. They maintained that the exclusion left some women and girls with mental disabilities without adequate access to lawful termination despite legal protections against sexual exploitation. Represented by lawyer Tendai Biti, the applicants relied on medical evidence, research and constitutional protections relating to life, dignity, equality and healthcare.

Government and opposing groups contest application

The Health Minister argued that the existing law’s provisions concerning threats to life and serious impairment of physical health were broad enough to accommodate relevant medical circumstances. The minister also cautioned against treating all mental health conditions alike, arguing that they vary in severity.

The Justice Minister challenged the applicants’ standing and argued that any changes to the law should be pursued through Parliament. The State also maintained that the challenged provisions remained constitutional. Parliament did not oppose the application, leaving the matter to the court.

The Catholic Lawyers Association of Zimbabwe, appearing as amicus curiae or friend of the court, argued that section 48 of the Constitution protects unborn life and that the applicants had not established the level of mental health impairment that would justify termination. Pro-Life Universitas also argued that expanding the grounds for lawful abortion was primarily a legislative responsibility and that courts should not effectively create a new statutory ground.

Court demands full constitutional test

Justice Patel said Parliament’s decisions were not beyond constitutional scrutiny simply because legislators had considered an issue and declined to amend the law. “The conduct and decisions of Parliament, like any other exercise of public power, are subject to constitutional review by this Court,” he held.

However, he distinguished the court’s general authority to review public power from whether the High Court had properly exercised its role in the proceedings before it. The Constitutional Court found that the lower court had not fully interpreted the relevant constitutional rights before determining that they had been infringed. It also failed to apply the section 86(2) test separately to establish whether the restrictions were fair, reasonable, necessary and justifiable in an open, just and democratic society.

The court consequently refused to confirm the declarations of invalidity and set aside the High Court judgment, making no order as to costs. For the applicants and women and girls whose circumstances informed the challenge, the outcome represents a setback in the case. The central question of how Zimbabwe’s abortion law should account for serious mental health conditions remains unresolved by this ruling.

The judgment highlights the constitutional balance between the protection of unborn life and the rights to dignity, equality, life and healthcare, while underscoring the legal standards courts must apply when reviewing legislation.

Zimbabwe Constitutional Court abortion ruling