Stringent abortion laws impair women’s autonomy, integrity
ZORORAI NKOMO
The discourse on termination of pregnancy creates an ongoing pendulum discourse between various communities in Zimbabwe and the world over.
Section 48(3) of the Constitution of Zimbabwe provides that an Act of Parliament must protect the life of an unborn child.
Section 60 of the Criminal Law (Codification and Reform) Act criminalise unlawful termination of pregnancy, unless there is incest, rape and risk of foetal impairment as provided by section 4 of the Termination of Pregnancy Act.
Legally, in Zimbabwe a person can only terminate pregnancy if there are only mentioned grounds which are incest, rape and risk of serious foetal impairment which can put the pregnant women in danger.
In addition to these three, the law further requires that a registered medical practitioner authorised to terminate by a court order is the only person who can terminate.
The debate on termination of pregnancy is not only confined to Zimbabwe but around the world.
In the recent landmark United States case of Dobbs v Jackson Women’s Health Organisation which overturned the decision of Roe v Wade, the court unequivocally held that abortion is not a constitutionally entrenched right and the constitution does not expressly and implicitly mention it because it was not deeply rooted in the US’s history.
Looking at the US apex court decision on abortion it is my humble submission that the judgment heralded the dawn of jurisprudential retrogression era on women’s sexual and reproductive health rights, their bodily autonomy and integrity.
Article 14(2)(c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa provides that State parties, Zimbabwe included, shall take appropriate measures to provide reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest and where pregnancy is likely to impair mental and physical wellbeing of a woman.
The majority of the Christian and religious world believe that women are not allowed to terminate pregnancy.
They both believe that God and ancestors are against the termination of pregnancy.
The current legal status is that termination of pregnancy in Zimbabwe is restricted.
However, despite the current legal standing on abortion, the greatest epistemological question towards restrictive abortion law is who is the beneficiary of these stringent statutory provisions? Is the current legal restrictions lowering the rate of clandestine abortion in Zimbabwe?
In 2019 alone, Zimbabwe’s Parliamentary Portfolio Committee on Health and Child Care revealed that over 80 000 cases of unsafe abortions were recorded in the country.
The 2015 Zimbabwe Demographic Health Survey Report shows that maternal mortality rate was at 462, meaning that per 100 000 women giving birth 462 are dying and over 30 per cent of these deaths are caused by illegal abortion.
The World Health Organisation (WHO) estimated that in 65 300 induced abortions occur in Zimbabwe every year, which translate to a rate of 17 abortions in every 1000 women between the age 15 to 49. To make matters worse, the WHO provides that of those 65 300 induced abortions only 25 000 receive proper post-abortion care.
The WHO provided that despite Zimbabwe’s fight towards maternal mortality rate, still Zimbabwe’s rate remains unacceptably high.
The major question is how restrictive and cumbersome is termination of pregnancy in Zimbabwe?
The law provides that for one to terminate pregnancy, a court order should be secured and that process must be performed by a registered medical practitioner (Medical Doctor).
For such peremptory legal requirement to be met, one has to be an average person who understand where to find a medical doctor and a court for making such an application, which is bit tricky and cumbersome to majority of ordinary Zimbabweans.
Court applications by their nature are clinical technical proceedings which even an average person even in the working class can struggle to understand, meaning that someone with better legal knowledge is needed to assist a person to lodge a court application.
This is clearly a cumbersome administrative obstacle especially for poor women in the rural areas. The cold and clinical nature of court processes will inhibit a lot of women to follow due procedures but rather resort to clandestine means of terminating pregnancy.
Since the law provides that termination will only be carried by a registered medical doctor at a designated institution, majority of women in Zimbabwe are in remote rural areas, where in other circumstances they walk for more than 20 kilometres to their rural health centres.
To make matters worse, it is a public secret that the majority of our rural health centres are hit by shortage of doctors, meaning that even if a woman has access to the designated termination centre, she may fail to terminate because the designated person will not be available.
The practicality of termination of pregnancy in Zimbabwe is another issue. While a person is looking for a doctor and court order to comply with the law, time will be ticking and medically speaking there are required prescribed weeks after conception which a woman can safely terminate.
To comply with required legal requirements money for transport to and from the court and designated health centres is needed.
To make matters worse majority of women in Zimbabwe a living by less than a US$1 a day. It’s clear that, no poor women would follow all these processes as long there is another clandestine way of terminating pregnancy. That is the reason why Zimbabwe is recording high cases of backyard abortions every year.
From a legal point of view, we envisage a progressive sexual reproductive health rights jurisprudence punctuated by liberal abortion laws, where women are allowed to terminate pregnancy freely without being subjected to psychological torturous legal restrictions.
Its high time as a country to come up with the laws which are sensitive to sexual reproductive health rights as the whole world is moving towards a society conducive for women’s bodily autonomy and integrity.
Stringent and restrictive termination of pregnancy laws are making backyard or illegal abortion industry lucrative and thriving in Zimbabwe, a development which is putting young women’s lives at risk.
Our legislature should learn from other jurisdiction such as our neighbouring South Africa where their legislation (Choice on Termination of Pregnancy Act) gives women right to access abortion services within 12 weeks of conception.
This line of thinking should not be always taken from a moral issue but, it’s a matter of life and death for thousands of Zimbabwean women. I am not supporting people to move around getting pregnant and terminate, but I am approaching this issue with a public health eye and the social dimension of justice which our legislature should use in democratising our laws.
The legislature should be alive to the fact that it’s the right of every woman to make autonomous bodily and reproductive decision in a democratic society based on right to equality, privacy and bodily integrity.
Zororai Nkomo is a Zimbabwean journalist, Lawyer and social justice advocate, he writes in his own personal capacity. He can be contacted on zoronkomo@gmail.com
