By Karen Sibanda
HARARE – In a landmark judgment with far-reaching implications for women’s rights, the High Court has declared sections of Zimbabwe’s Termination of Pregnancy Act unconstitutional, marking a potential watershed moment in the country’s reproductive health landscape.
The ruling delivered by Justice Chirawu Mugomba on November 11, 2025, follows a constitutional challenge brought by the Community Working Group on Health (CWGH) and Nyashadzaishe Titse, a gender rights activist and Member of Parliament, against the Minister of Health and Child Welfare, the Minister of Justice, Legal and Parliamentary Affairs, the Attorney-General of Zimbabwe, and the Parliament of Zimbabwe.
The application, heard between September 12 and November 11, 2025, challenged Section 4(a) of the Termination of Pregnancy Act and the definition of “unlawful intercourse” in Section 2(1) of the same Act.
The applicants argued these provisions violated multiple constitutional rights including the right to life (Section 48), human dignity (Section 51), freedom from torture (Section 53), and the right to health (Section 76).
In his founding affidavit, CWGH Executive Director Itai Rusike argued that the Act prohibits abortion in Zimbabwe except under a narrow set of circumstances… excluding mental health conditions as a basis for obtaining legal abortion.
“This exclusion is unlawful and unconstitutional as it disregards the genuine challenges women experience with mental health,” read part of the affidavit.
The applicants noted that the law, originally passed by the Rhodesian Parliament in 1977 and last amended in 2018, allows abortion only when pregnancy endangers a woman’s physical health, when the fetus would be seriously handicapped, or in cases of “unlawful intercourse” while specifically excluding mental health considerations.
The government initially opposed the application through Wenceslas Nyamayaro, acting Secretary for the Ministry of Health, who argued that the mental health aspect was covered.
“Severe mental health conditions that threaten a mother’s life are already covered under the common provision relating to serious threat of permanent impairment of physical health,” argued Nyamayaro.
However, during hearings, lawyers for the first to third respondents abandoned their preliminary objections including challenges to the applicants’ legal standing, compelling the court to rule on the merits.
The legal challenge follows years of advocacy by women’s rights groups and health organizations.
In 2022, the Zimbabwe National Adolescent Pregnancy Study revealed alarming rates of unsafe abortions among young women, with many citing mental health distress as a contributing factor.
The CWGH documented numerous cases where women with severe mental health conditions were denied legal abortions, leading to deteriorated mental states and, in some cases, suicide attempts.
Their 2023 shadow report to the UN Committee on the Elimination of Discrimination against Women highlighted the discriminatory impact of the current law on women with psychosocial disabilities.
“Section 4(a) of the Termination of Pregnancy Act be and is hereby declared constitutionally invalid. The definition of ‘unlawful intercourse’ in section 2(1) of the Termination of Pregnancy Act be and is hereby declared to be constitutionally invalid.”
The judge found that the exclusion of mental health considerations and the narrow definition of unlawful intercourse violated women’s constitutional rights to dignity, equality, and health care.
However, the declarations of invalidity were immediately suspended pending confirmation by the Constitutional Court, as required by Section 167(3) of the Constitution.
Tendai Biti, representing the applicants, welcomed the judgment as a victory for women’s dignity and constitutional rights.
“This recognition that mental health is as important as physical health in reproductive decisions aligns Zimbabwe with international human rights standards,” said Biti.
The case now moves to the Constitutional Court, where a confirmation hearing will determine whether Zimbabwe’s abortion laws will be modernized to better protect women’s mental health and address cases of sexual exploitation of mentally incompetent persons.
The judgment represents the most significant potential reform to Zimbabwe’s reproductive health laws in nearly five decades, with the power to affect thousands of women who currently risk imprisonment or seek dangerous illegal abortions due to the law’s restrictive provisions.
