High Court ruling paves way for reforms protecting women

Chengetai Murimwa

The Community Working Group on Health (CWGH) has welcomed a landmark High Court decision declaring key provisions of Zimbabwe’s Termination of Pregnancy Act unconstitutional, opening the door for reforms that recognize mental health as a lawful ground for abortion and protect women with mental disabilities from sexual exploitation.

CWGH, together with Member of Parliament Hon. Nyasha Batitsa, filed the constitutional challenge, arguing that gaps in the 1977 law have long denied women with mental disabilities meaningful access to safe and lawful abortion, despite constitutional guarantees of dignity, equality, bodily integrity, and the right to health.

Executive Director of CWGH, Itai Rusike, said the outdated law fails to align with both the Constitution and modern medical understanding.
“Section 4(a) has for decades confined lawful termination only to physical health risks, ignoring well-established constitutional and medical recognition that health includes mental and psychological well-being,” he said.

The applicants also challenged the Act’s failure to recognize pregnancies arising from the sexual exploitation of institutionalized women with mental disabilities as “unlawful intercourse,” even though such conduct is criminalized under section 106 of the Mental Health Act because the victims cannot legally consent.

“It was unacceptable that women who cannot legally consent to sexual activity were being excluded from protection under the abortion law, leaving them vulnerable and without recourse,” Rusike added.

High Court Judge Justice Chirawu-Mugomba upheld the challenge, ruling that both the exclusion of mental-health risk and the narrow definition of “unlawful intercourse” imposed disproportionate and discriminatory burdens on women with mental disabilities.

Applying section 46 of the Constitution, the court adopted a generous, purposive interpretation of rights and an effects-based analysis, drawing on jurisprudence from South Africa and Canada. In its findings, the Court affirmed that mental health is an integral part of the constitutional right to health and that legal frameworks must evolve alongside medical understanding.

The judge further held that excluding pregnancies resulting from the sexual exploitation of institutionalized mental-health patients denies them equal protection and undermines their dignity and bodily integrity.

The High Court declared sections 4(a) and 2(1) unconstitutional to the extent of their omissions. However, the declarations are suspended pending confirmation by the Constitutional Court, as required by section 175(1). Until confirmed, the provisions remain in effect.

Rusike described the judgment as a major step toward reproductive justice.
“This ruling is a victory for women’s autonomy, dignity, and health. It affirms that mental-health endangerment must be treated with the same seriousness as physical harm within our abortion laws,” he said.
“Women with mental disabilities deserve equal protection from sexual exploitation, and this judgment makes that unmistakably clear.”

Once confirmed by the Constitutional Court, Parliament will be required to amend the law to include mental health as a lawful ground for termination and broaden the definition of “unlawful intercourse” to cover sexual exploitation of women with mental disabilities.

“The judgment gives policymakers a clear mandate to reform the law and ensure that abortion services become accessible and responsive to the lived realities of women with mental disabilities,” Rusike added.

The application was brought by renowned human rights lawyer Tendai Biti on behalf of CWGH and MP Nyasha Batitsa. CWGH is a national network of civil society and community-based organizations working to strengthen public participation in Zimbabwe’s health system.