High Court declares parts of Zimbabwe’s abortion law unconstitutional, cites violations of mental health and victims’ rights

Zimbabwe’s High Court rules parts of the abortion law unconstitutional, citing violations of mental health rights and protections for sexually abused patients (image source)

The High Court has issued a landmark ruling declaring portions of Zimbabwe’s Termination of Pregnancy Act unconstitutional, finding that the statute unjustifiably limits fundamental rights by excluding mental health as a lawful basis for abortion and by failing to protect victims of sexual abuse in mental health institutions. Justice Sylvia Chirawu-Mugomba held that section 4(a) of the Act, which governs when a pregnancy may be lawfully terminated, is unconstitutional “to the extent that it excludes mental health.” The judge found that the omission violates rights to dignity, equality, and health, noting that women with mental health challenges are treated differently from others in accessing permissible health-related grounds for termination.

The court also ruled that the definition of “unlawful intercourse” in section 2(1) is unconstitutional because it does not include sexual abuse as defined in section 106 of the Mental Health Act, which criminalises sexual intercourse with mental health patients. The judge said this omission denies affected women access to safe abortion services and infringes rights including life (s 48), dignity (s 51), equality (s 56), and reproductive health (s 76).

The application was brought by the Community Working Group on Health and Member of Parliament Nyasha Batisa, represented by rights lawyer Tendai Biti. They argued that the Act discriminates against mentally ill women by permitting abortion only under narrow physical-health exceptions, ignoring mental health risks and the realities of abuse in mental health settings. The Minister of Health’s position — that mental health risks are implicitly covered under life-threatening physical conditions — was rejected. Justice Chirawu-Mugomba said such coverage is “not explicit” and leaves vulnerable women without clear legal protection, emphasising that mental health is integral to overall health, including challenges arising postpartum.

In a detailed 25-page judgment, the court criticised the inconsistency between the Termination of Pregnancy Act and the Mental Health Act, finding that misalignment undermines equality before the law and creates legal and procedural barriers to necessary reproductive healthcare for mentally ill women. The judge stressed that while Parliament has primary responsibility for law-making, courts are constitutionally required to intervene where rights are unjustifiably limited. She noted that judicial intervention may be necessary to uphold constitutional rights, fill legal gaps, or develop the law in line with evolving social values.

The court considered “reading in” new provisions to cure statutory omissions but found the applicants had not framed that relief with sufficient precision. Instead, it issued declarations of constitutional invalidity for the relevant parts of s 4(a) and s 2(1). In line with section 175 of the Constitution, those declarations are suspended pending confirmation by the Constitutional Court. The case has been referred to the Constitutional Court for confirmation, and no order as to costs was made.

If confirmed by the Constitutional Court, the ruling would require legislative or judicial clarification to explicitly recognise mental health as a lawful ground for accessing abortion services, align the Termination of Pregnancy Act with the Mental Health Act, ensure victims of sexual abuse in mental health institutions have access to safe and lawful termination, and strengthen equal protection and reduce procedural barriers for mentally ill women seeking reproductive healthcare.

Until the Constitutional Court’s decision, current provisions remain in force, but the High Court’s judgment signals a significant shift toward recognising mental health and institutional abuse within Zimbabwe’s reproductive rights framework.