Story by Fungai Jachi, Courts Reporter
THE legal system is enhancing the protection of the girl child after the High Court outlawed a statute which bars termination of pregnancy by victims of rape.
In his ruling, High Court Judge Justice Maxwell Takuva highlighted that it is in the interest of justice to protect girls who fall pregnant through rape by legally allowing the termination of pregnancies after the Constitutional Court ruled that the age of sexual consent is 18.
The ruling comes after Women in Law in Southern Africa challenged Section 2, subsection 1 of the Termination of Pregnancy Act which bars or denies children below the age of 18 and married women, who are victims of marital rape, to have access to legal abortion.
Justice Takuva added that children fall into the category of weak vulnerable persons in society hence they cannot approach a court on their own to seek appropriate relief for the redress of legal injury they would have suffered.
He added that giving victims of rape the right to abort is meant to protect underage girls, in line with the Constitution.
Stakeholders believe the ruling gives some form of relief to rape victims.
“For the longest time, it was more about punishing the perpetrator but not much was done for the victim who had to live with the scars of rape. If allowed to terminate, then it lessens the burden on the victim. What follows now is for the Constitutional Court to declare section 2(1) of the Termination of Pregnancy Act Chapter 15:10 unconstitutional and after that, legislation has to be put in place to ensure that it becomes a binding law that rape victims are allowed to legally terminate pregnancies acquired through rape,” Legal practitioner Mr Moffat Makuvatsine said.
Chairperson of the Zimbabwe Gender Commission, Commissioner Margaret Mukahanana- Sangarwe said, “As the Zimbabwe Gender Commission, we welcome the judgment and hope that the Constitutional Court is going to confirm the judgment and that the legislature will put in the necessary law and amend the act so that children will have access to safe abortions. We are having so many teen pregnancies and they are resorting to unsafe abortions, but if this is made into law, girls will be protected.”
Justice Takuva ordered Section 2, subsection 1 of the Termination of Pregnancy Act to be declared unconstitutional and invalid as it denies children who fall pregnant the right to abortion, which is not in the children’s best interest.
She added that it is an infringement of Section 81, subsection 2 of the Constitution of Zimbabwe.
