Failed by justice: Access to safe and legal abortion in Zimbabwe
By Tendaishe Changamire and Nancy Chabuda: Right Here, Right Now Zimbabwe
Section 48 of the Zimbabwe Constitution provides for the right to life of every person. Subsection 3 provides that an Act of Parliament must protect the lives of unborn children and that such an Act should govern when and how pregnancy can be terminated. Section 52 provides for the right to personal security, i.e. bodily and psychological integrity, which includes the right to choose when and when not to have children.
The termination of pregnancy, in general, is constitutional – within the limits set by Parliament. The current Termination of Pregnancy Act, promulgated in 1977, provides three circumstances where a woman is allowed to undergo an abortion: where there is a physical health risk to the mother, where the mental and physical health of the foetus is at risk, and where the pregnancy is a result of unlawful intercourse such as rape or incest. However, Zimbabwe’s young girls and women are faced with a high mortality rate, which the Act can not sufficiently address. Young people now engage in sexual activity at an early age and teenage pregnancies occur as a result. Since they feel desperate, have nowhere to go, and lack knowledge of the current legislation, most resort to unsafe abortions.
In the dialogues we have had with various communities as Right Here, Right Now (RHRN) Zimbabwe, women seek abortions for various reasons other than the circumstances covered by the law. From economic incapacity to the feeling that one is simply not ready to have a child, there are many valid and good reasons why a woman can seek the service.
The advocacy project has found that abortion services are available, but the quality of the service is highly dependent on class and privilege. Abortion pills are sold in the streets and in private health institutions, but those with the means fly to neighbouring countries where abortion laws are less restrictive.
In underprivileged communities, there are individuals who are well-known for providing the service in their homes with the help of traditional methods that involve specific plants and tools. Prohibitive laws don’t stop abortions from taking place, but they increase the risk of women dying from unsafe abortions. Prohibitive laws also prevent women from talking about their experiences for fear of being stigmatised or even arrested. As a result, very few women come forward to say they have had an abortion.
The few women who have shared their stories are mostly those who should have received an abortion under the law, but were failed by the justice system. Maria shared her story with Katswe Sistahood, an organisation in the RHRN Zimbabwe partnership. Katswe Sistahood is a feminist organisation fighting for women’s full attainment of sexual reproductive health rights (SRHR) in Zimbabwe. They have expertise in developing innovative solutions to women’s issues, such a creating safe spaces for women to share their stories through Pachoto sessions and the Pachoto band, an all-woman band that composes and performs empowering music for women and showcases the use of theatre for advocacy. Katswe enjoys various partnerships with government and civil society to ensure that women have access to contraception, HIV prevention and treatment, and even post-abortion care within the guidelines of the law.
When Maria* shared her story with Katswe about a year ago, she had already had an abortion. She did not want to provide much detail of where and how she underwent the procedure, but she shared the context. At 16, she was raped by her teacher and fell pregnant as a result. When her parents found out, they took the case to a local court. They lost the case due to a suspected cover-up by the school which wanted to protect the teacher’s job and the school’s reputation.
The parents subsequently took the matter to the High Court where they also applied for a termination order. During the trial, it emerged that Mary might have been in a relationship with the teacher. This placed the burden of proof that she was raped on Maria and her family. This development dragged the case out, while Maria’s pregnancy was nearing 20 weeks.
Fearing that the High Court would not grant a termination order or that it would be granted too late, her parents decided to pull out of the court procedures and resort to a backstreet abortion. Maria was fortunate that she did not suffer any complications from the procedure.
Maria’s story is not unique to Zimbabwe. The landmark case of Mildred Mapingure versus the state in 2012 is one of the many cases that have highlighted shortcomings in the existing law. Eight years after the Mildred Mapingure case, prosecutors in Zimbabwe corroborate that there is still a lack of knowledge of the Termination of Pregnancy Act among service providers and duty bearers and that it is challenging to implement the law in its current form. The law is vague and abstract and often leaves providers, prosecutors and duty bearers guessing exactly what they need to do.
In conversations with prosecutors in Zimbabwe, it emerged that the law does not clarify the following:
- Gestational limits: The law does not clearly state when it is safe to terminate a pregnancy. Prosecutors often rely on medical opinion to determine this, and guidance often varies from 20 weeks to 22 weeks to 12 weeks as the gestational limit for an abortion.
- Timeline in which one should obtain a court order: There is no clearly stipulated timeline in which a court order should be obtained.
- The right of choice: The Act does not clarify who has the right of choice. Prosecutors have come across cases where a guardian wants their pregnant child to keep the baby while the child wants to terminate the pregnancy. Cases like these often take longer to conclude and may delay the obtainment of a termination order.
- Limited definition of health: The Act provides that a therapeutic abortion can only be performed when the mother runs a physical health risk; it does not cover other aspects of health such as mental health.
- Limited definition of unlawful intercourse: The law stipulates that unlawful sexual intercourse includes rape and incest but excludes sexual offenses with minors. The law is not clear about the termination of pregnancies in the case of minors.
There is a critical need to address – with political will and public support – the challenges presented by the current Termination of Pregnancy Act. This law has presented a barrier to women’s right to health, specifically their reproductive health, and does not make adequate provision for women to freely exercise their own choices.
*Not her real name.