Robin Muchetu, Health and Gender Editor
THE High Court’s landmark ruling that struck down key parts of Zimbabwe’s restrictive abortion law as unconstitutional has drawn strong reactions from public health advocates and gender-rights organisations, who say the decision marks a long-overdue step towards protecting vulnerable women.
Justice Sylvia Chirawu-Mugomba ruled that Section 4(a) of the Termination of Pregnancy Act (Topa) of 1977, as well as the definition of “unlawful intercourse” under Section 2(1), are unconstitutional and invalid.
Parliament now has 18 months to amend Topa to align it with the Constitution and to incorporate protections required under the Mental Health Act.
Justice Chirawu-Mugomba decision followed an application by the Community Working Group on Health (CWGH) and Member of Parliament Nyasha Batitsa, who argued that the law unfairly excluded women with mental illness from accessing legal termination, even in cases of sexual exploitation.
The judge found that the decades-old Act fails to recognise that women with mental health conditions may be unable to consent to sexual activity and are therefore at heightened risk of abuse. By excluding them, the judge ruled, the law violates constitutional guarantees of equality, dignity, humane treatment and bodily autonomy.
“The statutory omission creates a discriminatory regime, forcing women to carry pregnancies that cause grave mental-health consequences,” Justice Chirawu-Mugomba said.
Although the affected provisions have been declared invalid, the order has been suspended for 18 months while Parliament amends the law. The ruling has also been referred to the Constitutional Court for confirmation.
Justice Sylvia Chirawu-Mugomba suspended for 18 months from the date of the order to enable the respondents to amend the provisions in the Termination of Pregnancy Act as cited to include mental health and conduct proscribed in Section 106 of the Mental Health Act.
“The above declarations of constitutional invalidity are suspended until such time as the Constitutional Court has confirmed the same in terms of section 167(3) of the Constitution of Zimbabwe. The above order of constitutional invalidity is referred to the Constitutional Court for confirmation in terms of section 175 (1) of the Constitution. There shall be no order as to costs,” she ruled.
CWGH executive director Mr Itai Rusike said the judgment marks a reflective shift in the country’s reproductive-rights landscape.
“It shifts the legal framework from a narrow, biomedical model of abortion, centred solely on physical survival, to a constitutional model grounded in dignity, equality and holistic health,” he said.
“Recognition of mental-health risk as a standalone indication for lawful termination modernises an area of law historically shaped through punitive colonial codes that disregarded women’s lived realities.”
Mr Rusike noted that the ruling elevates mental health within the country’s constitutional right to health and may have wider implications for health-sector reforms.
“This opens space to challenge insurance exclusions on psychiatric services, the chronic underfunding of mental-health care, and policies that treat mental health as secondary,” he said.
Mr Rusike said the decision also aligns Zimbabwe with regional and international obligations under instruments such as the Maputo Protocol and Cedaw.
Women’s rights groups said the court’s recognition of the vulnerability of institutionalised or mentally ill women, particularly under Section 106 of the Mental Health Act, is a major advance.
They argued that previous legal provisions offered little protection to women who cannot consent to sex yet were denied legal termination if they fell pregnant through abuse or exploitation.
Women’s Action Group (WAG) programmes officer Ms Vimbai Nyika said the ruling places new responsibility on the media to ensure accurate, sensitive coverage of abortion and sexual and reproductive health rights (SRHR).
“We want to strengthen the capacity of journalists to report ethically and sensitively on safe abortion and SRHR. With unsafe abortions happening around us, media narratives matter,” she said.
“They influence public understanding, policy debates and ultimately national productivity. The media has the power to educate, inform and support rights-based approaches to these issues.”
Zimbabwe’s current abortion law, passed in 1977 during the Rhodesian era, allows termination only when a woman’s life or physical health is in danger, when the foetus faces severe disability or when the pregnancy results from “unlawful intercourse”. Mental-health grounds are not recognised.
Applicants in the case argued that this omission violates constitutional rights to dignity and health, noting that mentally ill women cannot consent to sex and therefore must have access to legal termination.
—@NyembeziMu