Constitutional Court Sets Aside High Court Ruling On Zimbabwe’s Abortion Law
Zimbabwe’s efforts to expand the circumstances under which women and girls can legally terminate pregnancies have suffered a setback after the Constitutional Court overturned a High Court judgment challenging the country’s abortion restrictions.
The seven-judge court, in a ruling delivered on Wednesday, declined to confirm the High Court’s declarations that certain provisions of the Termination of Pregnancy Act were unconstitutional, finding that the lower court had not properly assessed the constitutional issues involved.
The decision does not settle whether the existing restrictions are constitutional. Instead, it centres on the legal process that must be followed when determining whether legislation unjustifiably limits fundamental rights.
Mental Health At Centre Of Abortion Law Challenge
According to The Herald, the case sought to establish whether serious mental health conditions should be recognised as a ground for lawful termination of pregnancy under Zimbabwe’s abortion legislation, which dates back to the 1970s.
The Community Working Group on Health and legislator and human rights activist Nyasha Batitsa challenged section 4(a) of the Termination of Pregnancy Act, which provides for termination where continuing a pregnancy endangers a woman’s life or threatens permanent impairment of her physical health.
The applicants argued that the provision unfairly excludes women experiencing severe psychiatric conditions, despite the potentially devastating consequences of such illnesses.
They maintained that health should encompass both physical and mental well-being, arguing that forcing women to continue pregnancies in certain circumstances could expose them to suicide, postpartum psychosis, lasting psychological harm and violations of their dignity.
Their challenge also concerned the law’s definition of “unlawful intercourse”, which they argued does not adequately cover pregnancies resulting from sexual conduct criminalised under section 106 of the Mental Health Act.
According to the applicants, the gap leaves some women and girls with mental disabilities without access to lawful termination despite existing legal protections against sexual exploitation.
Court Explains Why High Court Judgment Could Not Stand
Delivering the Constitutional Court’s judgment, Justice Bharat Patel said establishing that legislation limits a constitutional right is not sufficient, on its own, to invalidate that law.
“A finding that the impugned legislation limits a constitutional right does not, without more, render that legislation unconstitutional,” he said.
Justice Patel explained that the High Court should have examined whether the restrictions met the requirements of section 86(2) of the Constitution.
That provision requires limitations on fundamental rights to be fair, reasonable, necessary and justifiable in an open, just and democratic society.
The Constitutional Court found that the lower court had not fully interpreted the relevant constitutional rights before deciding whether they had been infringed. It had also failed to conduct a separate assessment of whether the restrictions could be justified under the constitutional test.
The court therefore set aside the High Court judgment and refused to confirm its declarations of invalidity. It made no order as to costs.
Health Ministry Defends Existing Restrictions
The Minister of Health and Child Care opposed the challenge, arguing that the current law’s provisions on threats to life and serious impairment of physical health were sufficiently broad to accommodate relevant medical circumstances.
The Minister also cautioned against treating mental health conditions as a single category, pointing out that they differ in severity.
The government further argued that introducing mental health as an express ground for termination could result in an overly broad approach. It also raised concerns about the mental health challenges that may be associated with abortion.
The Minister of Justice, Legal and Parliamentary Affairs separately questioned whether the applicants had established their standing to bring the case, arguing that they had not identified specific individuals whose rights had been violated.
The Justice Minister also maintained that changes to abortion legislation should be pursued through Parliament rather than through a constitutional challenge.
The Attorney-General asked to be excused from the proceedings, saying no substantive relief had been sought against her and that her involvement would be limited to ensuring the proper drafting of any amendments required.
Parliament did not oppose the application, leaving the matter for the court to determine.
Pro-Life Groups Oppose Expansion
Two organisations participating as friends of the court also opposed the proposed expansion of lawful abortion grounds.
The Catholic Lawyers Association of Zimbabwe argued that section 48 of the Constitution protects the lives of unborn children and that the existing legislation adequately safeguards their interests.
It also contended that the applicants had not established the level of mental health impairment that would justify termination.
Pro-Life Universitas argued that introducing additional grounds for lawful abortion was primarily a responsibility of Parliament. It maintained that the judiciary should not effectively create a new legal ground through its ruling.
The organisation also relied on section 86 of the Constitution, arguing that rights may be subject to constitutionally permissible limitations. It further submitted that Parliament had considered the proposed changes but had not adopted them.
An initial objection that the case was premature because of a pending legislative process fell away after the court was informed that the Senate had not approved the proposed amendments.
Parliament’s Decisions Remain Subject To Judicial Review
Although the Constitutional Court declined to confirm the High Court’s declarations, Justice Patel made it clear that Parliament’s decisions are not exempt from constitutional scrutiny.
“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 parliamentary action from the question of whether that authority should be exercised in the confirmation proceedings before it.
The ruling consequently leaves the substantive dispute unresolved. It does not establish whether excluding mental health as an independent ground for lawful termination violates women’s constitutional rights, nor does it affirmatively declare the challenged restrictions constitutional.
The ruling leaves the applicants without the court’s endorsement of their bid to broaden the circumstances in which abortion is legally permitted.