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COMMENTARY ON TERMINATION OF PREGNANCY ACT: Mapingure v Minister of Home Affairs & Ors S-22-14

The appellant was gang-raped by robbers at her home. She immediately lodged a report with the police and requested that she be taken to a doctor to be given medication to prevent pregnancy and any sexually transmitted infection. Later that day, she was taken to hospital and attended to by a doctor. She repeated her request, but the doctor only treated her for an injured knee. He said that he could only attend to her request for preventive medication in the presence of a police officer and that the medication had to be administered within 72 hours of the sexual intercourse having occurred. She went to the police station the following day and was advised that the officer who dealt with her case was not available. She then returned to the hospital, but the doctor insisted that he could only treat her if a police report was made available. Three days after the rape, she attended the hospital with another police officer. At that stage, the doctor informed her that he could not treat her as the prescribed 72 hours had already elapsed.

Eventually, a month after the rape, the appellant’s pregnancy was formally confirmed. Thereafter, the appellant went to see the investigating police officer who referred her to a public prosecutor. She told the prosecutor that she wanted her pregnancy terminated, but was told that she had to wait until the rape trial had been completed. Four months after the rape, acting on the direction of the police, she returned to the prosecutor’s office and was advised that she required a pregnancy termination order. The prosecutor then consulted a magistrate who stated that he could not assist because the rape trial had not been completed. She finally obtained the necessary magisterial certificate nearly six months after the rape, but the hospital matron who was assigned to carry out the termination felt that it was no longer safe to carry out the procedure and declined to do so. Eventually, after the full term of her pregnancy, the appellant gave birth to her child.

The applicant brought an action against the Ministers of Home Affairs, Minister of Health and Child Care and the Minister of Justice Legal and Parliamentary Affairs for damages for physical and mental pain, anguish and stress suffered and for maintenance of the child until the child turned 18. The basis of the claim was that the employees of the three Ministries concerned had been negligent in their failure to prevent the pregnancy or to expedite its termination. The particulars of negligence were itemised. Her claim was dismissed.[1]

The Zimbabwean Termination of Pregnancy Act Chapter 15:10[2] is very similar to the repealed South African Abortion and Sterilization Act of 1975. It also severely curtailed access to abortion services by requiring a physician’s and in some cases a magistrate’s, approval for abortion procedures.[3] As in many other countries, abortion is a volatile issue in Zimbabwe. There is a huge debate between prochoice advocates and various religious groups. This is one of the reasons for the stigma and the fact that women who seek assistance in terms of the Act are not effectively assisted. However it needs to be understood that The United Nations Commission on Human Rights (UNCHR) prescribes that access to safe and affordable abortion facilities is part of the sexual and reproductive health rights of women.[4] The Constitution of Zimbabwe in section 76 guarantees access to sexual and reproductive health services. As such the right to reproductive health is a constitutionally protected right.

When negotiations were made for the adoption of the new constitution[5], advocates for women’s reproductive health and rights fought hard to have abortion declared legal for everyone. They were of the belief that a repeal law would de-mystify abortion, and prove significant to victims of sexual offences by reducing the stigma and trauma they suffer. However, the Constitution that came into force in 2013 provides that an Act of Parliament must protect the lives of unborn children and that Act must provide that pregnancy may only be terminated in accordance with that law. The Constitution[6] therefore reiterates the strong anti-abortion stance which previously existed only in statutes. The right to life of an unborn child is now a constitutionally protected provision.

There remain therefore a few exceptional and limited circumstances under which abortion is legally permitted in terms of our law.

In conclusion it can be said that since the Termination of Pregnancy Act remains un-amended, abortion remains only available legally in exceptional circumstances and under very strict conditions and procedures. While it is debatable whether outright legalisation similar to that in neighbouring South Africa where abortions are permitted on demand and no reasons are required provided a woman is less than 20 weeks pregnant, is the answer, there certainly needs to be more practical, efficient and affordable ways of achieving legal abortions.[7] The Mapingure case[8] clearly points to the urgent need to amend the Termination of Pregnancy Act, to place the duty squarely upon the police and other authorities dealing with rape victims. The duty to guide and assist rape victims through the processes necessary to obtain contraception to avoid pregnancy or, where the victims wish this, to obtain termination of pregnancies. The amendment should require the authorities to act with expedition in such cases.[9]

By Lubelihle Nyati (Intern)

Masiye-Moyo and Associates

 


[1] G Feltoe. The Zimbabwe Electronic Law Journal Vol II (2017)(1)Publication Date: 01 April 2017
[2] Termination of Pregnancy Act, Chapter 15:10 as amended by Act 22 of 2001.
[3] S Guttmacher Farzana Kapadia, Jimm Te Water Naude, Helen de Pihno-International perspectives on sexual and reproductive health Vol 24, Issue 4,2 Dec 1988-Abortion reform in South Africa: A case study on the 1996 Choice of Termination of pregnancy Act.
[4] https://www.dailynews.co.zw/articles/2017/06/30/legalise-abortion-doctors
[5] The Constitution of Zimbabwe, 2013
[6] The Constitution of Zimbabwe, 2013
[7] http://www.thezimbabwean.co/2015/09/the-law-on-abortion-in-zimbabwe/
[8] Mapingure v Minister of Home Affairs & Ors S-22-14
[9] G Feltoe. The Zimbabwe Electronic Law Journal Vol II (2017)