By Kudakwashe Pembere
The Constitutional Court’s decision to set aside a High Court ruling that sought to expand the grounds for legal termination of pregnancy has left unresolved questions about mental health, disability and reproductive rights, the Community Working Group on Health (CWGH) says.
In a judgment issued on October 14, 2026, the Constitutional Court declined to confirm declarations that sections 4(a) and 2(1) of the Termination of Pregnancy Act were unconstitutional, finding that the High Court had failed to complete the constitutional analysis required before declaring legislation invalid.
The court set aside the High Court judgment but did not determine the substantive constitutionality of the challenged provisions.
CWGH said the ruling offered lessons for future strategic litigation, particularly the need to establish how legislation affects constitutional rights and whether any limitations on those rights can be justified.
“The Constitutional Court did not decide that the challenged provisions were constitutionally valid on their merits. It found that the High Court had not completed the required constitutional enquiry, including interpreting the relevant rights and assessing whether any limitation was justifiable under section 86(2) of the Constitution,” the organisation said.
The case was brought by CWGH and Nyasha Batitsa, who challenged provisions of the Termination of Pregnancy Act that they argued unlawfully excluded mental health as an express ground for termination and failed to cover certain pregnancies arising from sexual conduct criminalised under section 106 of the Mental Health Act.
The applicants argued that the restrictions infringed constitutional rights, including the rights to life, human dignity, equality and access to healthcare.
They relied on medical, statistical and expert evidence to argue that the restrictions disproportionately affected women with serious mental health conditions, women and girls with mental disabilities, adolescents and economically marginalised women.
The High Court ruled in their favour on November 11, 2025, declaring the challenged provisions unconstitutional to the extent that they excluded mental health as a ground for lawful termination and failed to recognise certain pregnancies involving women and girls with mental disabilities.
It suspended its declarations for 18 months to allow the relevant legislation to be amended and referred the matter to the Constitutional Court for confirmation, as required by the Constitution.
Writing the Constitutional Court judgment, Justice Bharat Patel said a finding that legislation infringed a constitutional right was not, by itself, sufficient to establish that the law was unconstitutional.
“The court a quo failed to undertake the complete constitutional enquiry required by the jurisprudence of this Court,” he said.
Justice Patel said the High Court had failed to interpret the relevant constitutional provisions to establish the scope of the rights allegedly infringed. It had also failed to conduct a separate assessment under section 86(2) of the Constitution to determine whether any limitation of those rights was fair, reasonable, necessary and justifiable in a democratic society.
The court said these omissions prevented it from confirming the declarations of constitutional invalidity.
CWGH said the decision left unresolved the effects of the restrictions on women with serious mental health conditions and women and girls with mental disabilities who may face sexual exploitation.
“These circumstances can involve intersecting barriers linked to gender, disability, stigma and healthcare access,” the organisation said.
It cautioned against interpreting the judgment as a substantive endorsement of the challenged provisions, saying the underlying questions about mental health, disability, sexual exploitation and access to lawful reproductive healthcare remained unresolved.
The organisation said the ruling highlighted the need for future constitutional challenges to establish the meaning and scope of the rights involved, demonstrate how the disputed legislation affected those rights and address whether any restrictions met the justification test under section 86(2).
“Relevant medical, social and expert evidence can help connect the operation of the law to its effects on women and girls,” CWGH said.
The organisation also noted that the court had affirmed the general principle that Parliament’s exercise of public power was subject to constitutional review.
Justice Patel said Parliament’s decisions were not immune from scrutiny simply because legislators had debated an issue and declined to amend the law.
“The conduct and decisions of Parliament, like any other exercise of public power, are subject to constitutional review by this court,” he held.
However, the judge distinguished the court’s general authority to review parliamentary conduct from whether that power should be exercised in the confirmation proceedings before it. He said a challenge to Parliament’s conduct could be considered in appropriate proceedings, but that issue did not need to be determined in the case before the court.
The case had also raised questions about a legislative process to amend the Termination of Pregnancy Act. The State initially argued that the constitutional challenge was premature because amendments were under consideration. That objection fell away after the court was informed that the Senate had not approved the proposed amendments.
State and opposing groups defended existing restrictions
The first respondent, the Minister of Health and Child Care defended the challenged provisions, arguing that the existing reference to threats to life and serious impairment of physical health was broad enough to accommodate relevant medical circumstances.
The minister also argued that mental health conditions varied in severity and that expressly adding mental health as a ground for termination could lead to an inappropriate blanket approach. The State further contended that abortion itself had been associated with mental health challenges.
The second respondent, Minister of Justice, Legal and Parliamentary Affairs challenged the applicants’ standing, arguing that they had not identified specific victims whose rights had been violated. He also argued that the proposed changes should be pursued through Parliament rather than through a constitutional challenge.
The third respondent, the Attorney-General sought to be excused from the proceedings, saying no substantive relief had been sought against her and that her role would be to ensure the proper drafting of any amendments required.
With the fourth being Parliament which did not oppose the application and elected to abide by the court’s decision.
The Catholic Lawyers Association of Zimbabwe, appearing as the first amicus curiae, argued that section 48 of the Constitution protected the lives of unborn children and that the existing law adequately safeguarded their interests. It also argued that the applicants had not established the level of mental health severity that would justify termination.
Pro-Life Universitas, the second amicus curiae, argued that expanding the grounds for lawful termination was primarily a matter for Parliament and that the court should not effectively legislate a new ground for abortion.
Tendai Biti represented the applicants. J. Shumba appeared for the first three respondents, while D. Chamutinya represented Parliament. A. Y. Saunyama appeared for the Catholic Lawyers Association of Zimbabwe and F. Mahere for Pro-Life Universitas.
The Constitutional Court declined to confirm the High Court’s declarations of constitutional invalidity, set aside the judgment and made no order as to costs.
CWGH said continued scrutiny of the Termination of Pregnancy Act, supported by rigorous constitutional litigation and evidence-based legislative review, remained necessary to ensure that reproductive health laws complied with the Constitution and addressed the circumstances of women and girls.
