guest column:Fidelicy Nyamukondiwa
The right to life is sacrosanct and absolute. It is the first human right enshrined in our Constitution. Even the yet to be born have the right to life. Section 48(3) of the Constitution states that “An Act of Parliament must protect the lives of unborn children, and that Act must provide that pregnancy may be terminated only in accordance with that law”. This article outlines the grounds upon which pregnancy can lawfully be terminated in Zimbabwe.
The Act of Parliament referred to in section 48(3) of the Constitution is the Termination of Pregnancy Act, Chapter 15:10 (hereinafter the Act). There are three grounds upon which pregnancy can lawfully be terminated in Zimbabwe. These grounds are listed in section 4 of the Act. The Act sanctions that pregnancy should only be terminated by a registered medical practitioner and in a designated institution. The medical superintendent of such institution must give written permission to terminate pregnancy. Any abortion outside the four corners of the Act is illegal and unconstitutional.
The first ground upon which pregnancy can be terminated is where its continuation endangers the life of the pregnant woman or where it constitutes a serious threat of permanent impairment of her physical health. Two registered medical practitioners must first certify that termination is necessary to safeguard the life or physical health of the gravid woman.
Secondly, abortion may be authorised when there is a risk that the child to be born will suffer from a physical or mental defect. The risk of physical or mental defect should not be a remote risk. It must be a serious risk. The physical or mental defect must be of such a nature that the child to be born will permanently and seriously be handicapped. This means that where the mental defect is likely to be temporary or trivial, abortion will not be authorised. The medical superintendent should not authorise abortion unless if satisfied that two medical practitioners have examined the woman concerned and certified that termination is warranted for.
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The last and probably the most controversial ground upon which pregnancy can lawfully be terminated is where there is a reasonable possibility that the pregnancy was conceived as a result of unlawful intercourse. Section 2 of the Act defines unlawful intercourse as “rape, other than rape within a marriage, and sexual intercourse within a prohibited degree of relationship, other than sexual intercourse with a person referred to in paragraph (i) or (j) of subsection (1) of section 75 of the Criminal Code”.
Simply expressed, a pregnancy can be terminated when it would have been conceived as a result of rape. Where, however, a married woman is ”raped” by her husband, the pregnancy conceived therefrom cannot be terminated. The mentioned section 75 outlines the degree of relationships not permitted to have sexual intercourse. Pregnancy conceived as a result of sexual intercourse within a prohibited degree of relationship may lawfully be terminated.
One glaring absurdity in section 2 of the Act is the deliberate exclusion of “statutory rape” on the definition of unlawful intercourse. This entails that where an adult has consensual sexual intercourse with a young person and a pregnancy is subsequently conceived, abortion cannot be done. The rationale behind the deliberate omission is probably because the young person would have consented. I find it weird and illogical to argue that children sexually exploited by prowling child molesters must be allowed to give birth. Take for instance a 13-year-old girl who falls pregnant after sexual abuse by a 40-year-old man. Section 2 should be amended to include the offence of having sexual intercourse with a young person.
A precondition for termination of pregnancy conceived as a result of unlawful intercourse is the production of a certificate issued by a magistrate. Put differently, a magistrate must make an order authorising termination of pregnancy resulting from unlawful intercourse. The Act provides that the issuance of the magisterial certificate must be preceded by a police report. In terms of paragraph (f) of subsection (1) of section 184 of the Criminal Law Code, making a false police report is an offence attracting two years’ imprisonment. This should serve as a warning to would-be offenders.
Mildred Mapingure v Minister of Home Affairs and Others is a 2014 Supreme Court case involving a woman (Mildred) who was attacked and raped by robbers on April 4, 2006. She immediately reported the attack to the police and requested to be referred to a doctor to be given medication to prevent pregnancy. At the hospital she was referred back to the police. She continued to be referred back and forth until her pregnancy was confirmed on May 5, 2006. It took a further four months before a magisterial certificate to terminate the pregnancy was issued. The prosecutor who handled the case consulted the magistrate and was told that the magisterial certificate could not be issued until the rape trial was finalised. This was flagrantly wrong. After the certificate was finally issued, the hospital matron who was assigned to carry out the abortion felt that it was no longer safe and declined to do so. Mildred eventually gave birth to a child on Christmas eve. She successfully sued the Home Affairs and the Health ministers for their employees’ negligence.
The import of the Mapingure case is that the police and medical practitioners must be schooled on how to handle unlawful intercourse cases. Prosecution and magisterial staff must equally be attentive by taking reasonable steps to ensure that pregnancy conceived as a result of rape and incest is timeously terminated. It is opined that rape victims must, where necessary and safe for them, make efforts to obtain pregnancy preventive drugs commonly known as ‘morning after pills’.
St Thomas Aquinas, a natural law theorist contends that the ultimate source of all law is the eternal ordinance of God.
It is, however, regretful that human-made laws often violate the laws of God. That legislation legalising abortion violates the laws of God is unquestionable. Thou shall not kill is God’s Commandment number 6. In the same boat, Psalms 127 v 3 provides that children are a heritage and reward from the Lord. Natural law theorists also argue that law cannot be separated from the precepts of morality. It is common cause that abortion is morally reprehensible. Be that as it may be, the supreme law of Zimbabwe (the Constitution) gives room for abortion.
After all has been said and done, it is crucial to re-emphasise that there are only three grounds for legal abortion in Zimbabwe. Poverty, incapacity to take care of a child or shame are not legal grounds for termination. Any other grounds not mentioned in this article are illegal and unconstitutional. Any person who aborts otherwise than in accordance with the Act commits an offence and must be arrested and prosecuted for contravening section 3 of the Act or alternatively section 60 of the Criminal Law Code. A person convicted for illegal abortion can be sentenced to five years imprisonment or to pay a level 10 fine (ZWL$6 000-00).
Fidelicy Nyamukondiwa writes here in his personal capacity. He is contactable on 0785827154 [email protected]
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