Zimbabwe: Constitutional Court Sends Abortion Law Challenge Back to High Court

The Constitutional Court has set aside a High Court ruling that declared part of the country's abortion law unconstitutional, ordering the matter to be heard afresh after finding that government and Parliament failed to properly participate in a case with far-reaching public consequences.

The court said the respondents' decision to simply "abide" by the High Court's decision meant critical arguments and information were never placed before the court.

Justice Ben Hlatshwayo, writing for the unanimous court, said the respondents' conduct was unacceptable in a case involving fundamental rights, children and reproductive health.

"The respondents were convinced that merely stating that they would abide by the court's decision was enough, and they need not do anything further to assist the court in arriving at a proper decision. As will be shown below, they were absolutely wrong in this regard," he said.

The ruling followed a challenge by Women and Law in Southern Africa and Talent Forget, who sought to have section 2(1) of the Termination of Pregnancy Act declared unconstitutional because it excludes pregnancies resulting from sexual intercourse with minors and marital rape from the definition of "unlawful intercourse".

The provision is important because section 4 of the Act allows pregnancy to be terminated where there is a reasonable possibility that the foetus was conceived through unlawful intercourse.

The High Court in November 2024 declared the entire section unconstitutional, finding that pregnancies resulting from sexual intercourse with minors should qualify for lawful termination.

But the Constitutional Court found that the High Court's proceedings were fundamentally flawed because the respondents had not meaningfully contested the application.

"It is irrefutable that this case raised issues of profound importance that clearly warranted serious debate and analysis," Hlatshwayo said.

"The respondents should have assisted the court by availing information, however colourlessly, in the matter."

The court noted that Parliament had been debating possible amendments to the abortion law while the litigation was underway, and that the National Assembly had subsequently passed the Medical Services Bill, 2025, which seeks to redefine "unlawful intercourse" as sexual intercourse that constitutes a criminal offence.

The proposed legislation would also allow girls under 18 to access termination of pregnancy on demand during the first 12 weeks, subject to the provisions of the Bill.

The Constitutional Court said these developments were highly relevant and should have been brought before the High Court.

"It is highly concerning that despite all these concurrent developments, the respondents remained silent and chose not to engage fully with the proceedings. That is unacceptable," Hlatshwayo said.

The court also criticised the government's attempt to introduce a new argument against including marital rape only at the confirmation stage.

It said the approach placed the Constitutional Court in the "invidious and untenable position" of effectively deciding the contentious issue as a court of first and last instance.

The court stressed that confirmation proceedings are not a fresh trial but a review of the lower court's decision.

"The essence of review proceedings is to scrutinise what occurred in the court a quo, not to entertain fresh arguments or evidence introduced at this stage," the judgment said.

The court nevertheless accepted that Women and Law in Southern Africa and Forget had standing to bring the case in the public interest, particularly because it concerned vulnerable children.

Forget had told the High Court that she became pregnant at 17 after entering a relationship with a 24-year-old man. When she was seven months pregnant, the man left her and married another woman. She said she had considered abortion but could not access safe services because of legal restrictions.

The Constitutional Court noted, however, that the law applicable in 2014 did not yet define 17-year-olds as minors in the manner later established through constitutional jurisprudence. It therefore held that Forget's standing rested on public interest rather than personal injury.

The court highlighted the gravity of the issues raised, including claims that unwanted adolescent pregnancies expose girls to serious health risks and can interfere with their education and social development.

The applicants had cited research showing that 40 percent of pregnancies in Zimbabwe were unintended in 2016, with one quarter of unintended pregnancies ending in abortion.

Counsel for the applicants, Tendai Biti, also told the court that about 80,000 abortions occur in Zimbabwe each year and that one in three involved minors.

The Constitutional Court, however, declined to determine whether the challenged provision was itself constitutional or unconstitutional, saying the procedural defects required a fresh hearing.

"Accordingly, given the findings by this Court, it is procedurally fair and proper to remit the matter to the court a quo so that all issues may be fully ventilated and informed arguments presented by all parties," Hlatshwayo said.

The court set aside the High Court judgment and ordered that the matter be reheard de novo, meaning from the beginning.

It also warned public bodies that their obligation to participate meaningfully in public law litigation cannot be avoided by simply agreeing to abide by a court's decision.

"The situation was made worse by the belated attempt to introduce new issues and evidence at the confirmation stage," the court said.

The ruling was unanimous, with Justices Elizabeth Gwaunza, Paddington Garwe, Anne Mary Gowora, Bharat Patel, Tendai Uchena and Lavender Makoni concurring.

No order as to costs was made.

Read the original article on New Zimbabwe.