To Or Not To Legalise Abortion, Zimbabwe’s Legal Dilemma

ABORTION has been a contentious issue in Zimbabwe and the world over, with governments and civil society organisations clashing on numerous platforms over the morality, acceptability and legality of the practice.

By Michael Gwarisa

The United States government under the current Donald Trump administration does not support abortion, neither does it provide funding for organisations which support abortion. In Zimbabwe, not only is abortion taboo but is in most instances associated with loose morals and first degree murder as it involves the termination of a fetus (life) from its mother’s womb.

Even though some African countries like Zambia, South Africa and Kenya have legitimized safe abortion at public health institutions, uptake of abortion services is still very low and mortality as a result of unsafe abortions is still very high amongst girls and young women.

According to the World Health Organisation (WHO), at least 22 million unsafe abortions happen annually around the globe, resulting in 47 000 deaths and five million complications. A UNICEF report indicates that 70 to 80 000 abortions occur annually in Zimbabwe.

For Zimbabwe however, the situation is more legal that it is a moral, religious or social one amidst indications that the existing Termination of Pregnancy (ToPA) Act of 1977 on its own is ridden with ambiguities and dead ends according to legal experts.

Zimbabwe Lawyers for Human Rights (ZLHR) programs manager and Lawyer, Tinashe Mundawara says Zimbabwe’s abortion act needs to be amended so as to do away with certain ambiguities and inconsistencies.

“The whole discourse in terms of the law around termination of pregnancy starts with the Supreme law of the land which is the constitution of Zimbabwe amendment number 10. Section 48 has got three subsections and the last one which makes reference to the protection of the life of the unborn children.

“The whole legal framework starts from the condition of protection of the life of an unborn child, which is constitutionally provided that is premise that discourse in terms of the law of Zimbabwe Section 48 (3). It (pregnancy) can only be terminated in accordance with the law, the last amendment of the Act was done in 2014. So in terms of the substance of the act, the amendment was of little consequence,” said Mundawarara.

According to the ToPA, no person may terminate a pregnancy otherwise than in accordance with this Act. (2) Any person who contravenes subsection (1) shall be guilty of an offense and liable to a fine not exceeding level ten or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

“There are two critical players in what is provided for in the act. The first main subject is the mother and child and the second one is the aspect of the criminal law. In terms of the mother, where the termination if the pregnancies is allowed when the life of the mother is in danger or the pregnancy constitutes a threat of in or there is risk that the child to be born will suffer a permanent impairment or when the child will suffer from a physical or mental defect.

“So this is also a medical reason where there is need for expert medical opinion. So these two concerns the mother and the child. Then C, says where there is a reasonable possibility that there is possibility that the child has been conceived under unlawful intercourse. There it then opens the door for criminal law to come in.” added Mundawara.

According to the law, termination of pregnancy cannot happen anywhere else besides a designated institution in this case a public hospital and at least two medical practitioners must prove beyond reasonable doubt that the pregnancy indeed warrants a termination.

Katswe Sisterhood’s Program Officer and women rights lawyer, Debra Mwase said the current constitution was progressive in many ways with regards to the rights to abort but more still needed to be done to eliminate the ambiguities.

“In the previous constitution that we had under the provision for the right to life, it provides for the right to life of living people and not of fetuses. The current constitution is progressive in many ways but within the women movement, we feel that it is a bit two steps back when it comes to issues of abortion because the rights of an unborn child is protected within the constitution which was not the prior position with the old constitution.

“So this is quite a victory for those who are pro-life and we have the right to health within the constitution. It talks about Sexual Reproductive Health Rights (SRHR) but there is not mention of abortion within the constitution, the mention that is there is on protecting an unborn child so this is quite a set back within the liberalisation of abortion laws,” said Mwase.

Meanwhile, SAYWHAT programs officer, Sendisa Ndlovu said the current abortion law is silent to the aspect of post abortion counseling and care and women/girls who would have partook in the act are usually traumatised and susceptible to depression or even suicide.

“When policy on its own becomes too vague, it becomes too difficult to implement. Vagueness on its own is a way of ensuring that that policy will never be implemented. Although you are raped, or there is incest, although there is physical concerns, a lot of changes in the act are never clearly defined in the Act.

“The physical part in the Act is not even clearer defined, disability is not even van not get abortion services on the basis that they are disabled.

“The policy is not clear what will happen to trauma, the policy simplifies rape and abortion. The policy is clear to deal with trauma and conditions that women go though after accessing abortion services. We have got a piece of legislation that is looking at the situation from a medical perspective,” said Ndlovu.

He added that Act treats women as a homogeneous group without factoring in circumstances under which various women live under.

“The act on its own is not sensitive to the realities that women live under, there are women in rural areas, women/girls in farming communities. Women are not a homogeneous group.”








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