The Constitutional Court has remitted a landmark case challenging the country's abortion laws back to the High Court for a full re-hearing, citing procedural irregularities and the respondents' failure to meaningfully participate in proceedings.
The case, brought by Women and Law in Southern Africa (WLSA) and the applicant, Talent Forget, sought to expand the definition of "unlawful intercourse" under the Termination of Pregnancy Act to include marital rape and sexual intercourse with minors.
The High Court had previously declared Section 2(1) of the Act unconstitutional and invalid, but constitutional requirements mandate that such orders must be confirmed by the Constitutional Court to take legal effect.
WLSA, represented by Tendai Biti, argued that the current definition of "unlawful intercourse" unjustly discriminates between different categories of victims.
The Act permits the termination of pregnancy only in cases of rape outside of marriage, excluding pregnancies resulting from marital rape or sexual intercourse with minors.
"Unlawful intercourse means sexual intercourse that constitutes a criminal offence," the applicants argued, adding that since marital rape is now criminalised and the age of sexual consent is 18, both scenarios should qualify for legal abortion.
The applicants also argued that denying minors access to safe abortions violates multiple constitutional provisions, including the right to human dignity (Section 51), freedom from torture and cruel treatment (Section 53), and children's rights (Section 81).
The applicants presented statistics from the 2010 and 2011 demographic health surveys by the United Nations Population Fund (UNFPA), showing that adolescent mothers aged 10 to 19 faced higher risks of eclampsia, sepsis, and other life-threatening conditions compared to women aged 20 to 24.
They also cited figures showing that 40% of pregnancies in Zimbabwe were unintended in 2016, with a quarter ending in abortion.
The respondents—including the Health and Child Welfare minister, the Parliament of Zimbabwe, and the attorney-general—who had previously indicated they would abide by the High Court's decision, opposed confirmation of the order.
They argued that including marital rape as a ground for termination could be easily abused, particularly given that married couples may experience conflict, but quickly reconcile.
They also contended that the High Court's order was too broad, as it declared the entirety of Section 2(1) unconstitutional when only specific aspects were challenged. The ConCourt bench, led by Chief Justice Elizabeth Gwaunza, noted that the respondents' failure to participate meaningfully in the High Court proceedings hampered proper adjudication.
"It is surprising that the second respondent did not have anything to say in this application given that possible revisions to the Act were being debated in Parliament as early as March 2025," the judges ruled.
They noted that one Member of Parliament had suggested repealing the entire Act, describing it as "archaic" and inconsistent with recent legal developments.
Regarding the applicant’s personal testimony of becoming pregnant at 17, the court noted she could not rely on legal protections that did not exist at the time, as 17-year-olds were not legally classified as minors under the then-prevailing legal framework.
The ConCourt set aside the High Court's judgment and remitted the matter for a hearing de novo (afresh).
"Accordingly, the application needs to be re-heard with active, informed and meaningful participation on both sides. Given the complex and far-reaching nature of the issues at stake, the court a quo may consider appointing amici curiae on both sides," the judges ruled.
The court emphasised that all parties must participate actively, meaningfully, and with informed arguments in the new hearing, suggesting that the High Court consider appointing amici curiae (friends of the court) on both sides given the complex and far-reaching nature of the issues at stake.