Is it the time to liberalize and expand Zimbabwes abortion law? An insightful read into the current challenges under the existing framework of laws by Lincoln Majogo

 

IS IT THE RIGHT TIME TO EXPAND ZIMBABWES ABORTION LAWS? A comprehensive insight into the challenges of the current abortion laws in Zimbabwe. 

By Lincoln Majogo.

Profile 

Lincoln Majogo is a law student currently studying at the University of Zimbabwe. He has written and published 2 novels to his name, one titled MUTSA and another tiled The Mirror, Suicide Note and Other short stories.

Contact details 

Telephone, Whatsapp//0773 785 283

Email address: LincMajogo1@gmail.com

Twitter handle: @LincolnMajogo

ABSTRACT

The purpose of the article is to offer insights into the existing framework of law governing abortion with a view that there is urgent need for government review the matter with an intention of liberalizing the law through reducing procedural roadblocks to accessing pre and post care abortion services in Zimbabwe. 

Introduction

The issue of abortion has divided opinions amongst conservative pro-life supporters and abortionists. For the purposes of context conservatives are those that believe the current grounds for abortion are adequate and should not be expanded to allow for certain grounds that include termination of pregnancy upon request during the first 13 weeks of pregnancy, mental health and socio-economic reasons. The direct parallel of this group are pro choice supporters who believe the current laws should be expanded to allow women the liberty of making decisions concerning their reproduction subject to very minimum procedural and substantive roadblocks imposed by the state.

 Loosely defined, abortion is the termination of pregnancy before birth is given. Pregnancy can be terminated at different stages, some which are safe and some which are unsafe. Unsafe abortion is defined as a procedure for terminating unwanted pregnancy either by persons lacking necessary skills or in an environment lacking minimum standards or both. 

The topic on abortion is a very contentious issue particularly in Zimbabwe where the dominant sectors of society are conservative Christians whose religious ideologies are not in tandem with abortion let alone in very limited circumstances such as rape. As a result a lot of stigma surrounds the issue as it is often accompanied by stereotypes. 

The prevalence of the issue though cannot be underestimated. According to the World Health Organization an estimated 36 to 53 million abortions are performed every year. Of this number, 20 million are abortions that are performed by unskilled providers using very dangerous techniques/ or under unsanitary conditions thus, rendering such abortions unsafe. The developing world is host to 95% of unsafe abortions. 

The Zimbabwean system has had the privilege of having cases on unsafe stages of abortion. This was the case in Mildred Mapingure v Minister of Home Affairs, where the complainant that had been raped during a robbery was awarded a certificate of termination in terms of the Act when the pregnancy was 7 months old. The doctors ruled this to be an unsafe stage of performing the abortion procedure thus forcing the complainant to an unwanted baby. 

In a post inside the Sunday mail this year, Health and Child Care Ministry Doctor Bernard Madzima estimated that 16% of maternal deaths are related to unsafe abortions. This is largely the state due to stigma, unaffordable medical fees, rigorous and stringent procedures surrounding the matter, amongst other factors. Dr Ruth Labode, who is the chairperson of the Parliament Portfolio and Committee on Health and Child Care posited in 2014 that approximately 80000 backdoor abortions were occurring in Zimbabwe annually. The Sunday mail posited the figure to be around 60000 a year. 

It is common cause unsafe abortions occur without the required formalities set by the law either through lack of qualified medical health practitioners or outside the prescribed environment required by the law. The process involves middle-woman who reportedly have been said to use knitting needles, spoons, dangerous pills and assorted concoctions to terminate pregnancies. The obvious effect is that some of the abortions may fail leading to extensive loss of blood due to hemorrhaging, infections and deaths. Mupedzanhamo in Mbare has been identified as the hotspot in which these backdoor abortions are carried out. 

The alternative of going through the formal channels has also been a surreal option as it is estimated that private clinics costs between 150 USD -300USD for an abortion procedure. Since the majority of women carrying out abortions are poor, this qualifies as economic discrimination on the grounds of wealth since only the rich can afford such exorbitant amounts. This does not go without saying the elite minority can afford trips to countries such as South Africa, UK, USA, amongst others where a more liberalized approach to abortion exists. Dr Alfred Nyoni, a Harare specialist doctor and gynecologist also confirms the findings that most of the unsafe abortions occur due to poverty. 

He further posits that “for those that use unsafe methods, the life threatening consequences include severe hemorrhage, sepsis (severe general infection), poisoning, uterine perforation or damage to internal organs. Urgently admitted to hospital, a woman may need a blood transfusion, a major reparative surgery or a hysterectomy- a complete and irreversible removal of the uterus”. 

Moreso, It hasn’t been all colorful for those that have used the formal channel either as they have also encountered insurmountable odds along the way. The case of Mildred Mapingure provides a very clear glimpse of the delays that may occur in obtaining a certificate by the magistrate. In this case, a woman that had been robbed and raped received the certificate of termination during the very dire stages(7 months) of the pregnancy where the doctors ruled it inoperative and unsafe. 

The effects of having an unwanted baby are life changing, plus the costs of maintaining it which the state or society are not usually enjoined. In rare cases where the state is enjoined, sometimes it might take way longer to get a judgment to the extent that by the time one gets it the child might have grown up already thus leaving all costs to be borne on the single woman. The Mapingure case for instance occurred in 2006 but judgment in a claim for damages was delivered after a staggering 8 years.

In a highly inflationary environment such as Zimbabwe, the amount awarded might have lost the original value the complainant claimed due to the delays. Young women as a result may be forced to drop out of school to take care of their child as well as leave their employment thus unduly limiting their rights to educations and profession. Moreso, the stigma surrounding young females that attend school carrying a baby in their uterus is not to be underestimated. These women have to endure the stigma of being labeled as ‘irresponsible’ and in some cases ‘prostitutes’. Because of the stigma on the issue, very few women are willing to come out and share their stories or report these abuses to authorities causing silent suffering and parental neglect of children in some cases not to mention the relatively strong possibility of baby dumping and infanticide.

 From an economic standpoint, the stringent abortion laws end up backfiring at government. As Dr Labode notes most of those unsafe abortions end up in government institutions to seek medical treatment. Consequently the government is left without option but to use public money to attend to such treatments, some of which include buying blood which costs USD 70 for a pint to restore the huge loss that would have occurred. Is it justifiable in such circumstances to use taxpayers money for such? one is tempted to ask. It is with this in mind that there ought to be an urgent review in the state of laws with regards to abortion. South Africa, after 2008 has reduced the number of abortion related deaths to a third compared to those of Zimbabwe owing to a decentralization of abortion services plus a liberalization of the laws with regards to the procedures affecting termination of pregnancy. One can safely conclude the existing laws require reviewing in light of this background context.

Legal context: 

This discussion stems from the 2 competing rights inside the Constitution of Zimbabwe namely the right to personal security in section 52 which reads that every person has a right to bodily and psychological integrity which includes the right (b) subject to any other provision of this constitution, ‘to make decisions concerning their reproduction’. The term subject to means except as curtailed by and the provision that curtails this right is section 48 of the Constitution which protects the right of an unborn child. 

The law governing termination of pregnancy in Zimbabwe is the Termination of Pregnancy Act Chapter 15:10. The definition section provides for very useful definitions of the law on abortion. A fetus is defined to include an embryo in tandem with section 48 of the Constitution which protects the life of an unborn baby. Zimbabwe is amongst 13 countries in Africa that have a semi-liberal approach to abortion, these being Angola, Botswana, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zaire and Zambia.

The Act provides for the circumstances in which termination of pregnancy can occur lawfully these in terms of section 4 being in instances of rape, incest, threat to the mother’s life, serious impairment to the unborn child. Section 5 criminalizes unlawful termination of pregnancy which can result in 5 years imprisonment. 

Suffice to say the existing framework of laws has certain shortcomings in the full realization of sexual and reproductive rights in Zimbabwe. One of the chief problems with the existing law is that section 4 allows for termination if a finding is made that there was “unlawful intercourse”. The determination of whether the activity was lawful or not is the role of the court. 

It is common cause that rape cases which usually are on opposed roll in Zimbabwe take way long to prosecute thereby creating a real risk that by the time the court makes a finding of unlawful intercourse the pregnancy may have reached a very dangerous stage where allowing abortion threatens even  the life of the mother. 

 This technically takes away the complainants right to obtain speedy relief which enables them to have the pregnancy terminated legally and within the safe period i.e. the first 13 weeks, subjecting them to very dangerous phases that threaten even her right to life. This fact alone may cause distrust that the system will cause delays and thus complainants opt for backdoor abortions.

Secondly the Act only recognizes registered doctors as performers of abortion which makes the system heavily reliant on the availability of the already short stuffed doctors. This is different from South Africas position which recognizes registered nurses and trained midwives as equally competent to perform abortion particularly during the first 13 weeks. The provision inside the Act infers that regardless of the complainant having a certificate, they may face the challenge of unavailability of the doctors due to the simple fact that the medical healthcare in Zimbabwe is understaffed owing to the prevailing economic situation in the country.

Thirdly, there is a problem when the prescribed 2 doctors do not consent to the requirement to have abortion. These doctors have to be of different membership but more importantly, the Act prescribes that there be consent by these 2 doctors in cases involving other grounds other than rape and incest. There is a possibility that one doctor might not be of the view that the circumstance warrants abortion. 

The anxiety created, added to the pregnancy stress deters complainants from using the formal ways of abortion can be said to be an encroachment inside the psychological integrity of the woman which section 52 protects.  

On a bigger picture, this raises a very crucial constitutional point. Who has the ultimate choice in abortion? From the Act, it seems the magistrates order accompanies by doctors opinions is the overriding factor on grounds other than rape and incest. This is an Act created during the helm of colonial repressive laws in which women were considered perpetual minors at law and thus had their rights severely limited  by the law. A lot has changed though owing to the Katekwe v Muchabaiwa case which held that women above the age of 18 were no longer minors and this was supported the passing of the Legal Age of Majority Act 2 years prior to the judgment in 1982. The essay will look at how other jurisdictions have approached this constitutional point.

The approach in some states in the United States has been to give the ultimate choice to the woman especially during the first 13 weeks whether it is considered safe to terminate pregnancy. The Planned Parenthood v Casy case affirmed the woman’s right to make the ultimate decision. After 13 weeks, a physician is needed to determine if termination is safe and does not impair the woman’s health. The court further held that whilst this right exists it is not absolute, “as it must be considered against important state interests in safeguarding health, maintaining medical standards and in protecting potential life” Roe at 154. The position in Zimbabwe is that the right to personal security is qualified as these can be limited in terms of section 86 of the constitution on justifiable and necessary grounds.

In addition, the current Act in a way discriminates against the poor and those staying in the rural areas where very few doctors are available and clinics have the required tools to carry out an abortion. It is common cause most folks staying in rural clinics have at most access to clinics where only one doctor may be available. To add up to that, there is little knowledge of the existence of these services at clinics.

The story in other African countries has also been mixed up with different approaches to the issue. South Africa, together with Angola, Lesotho, Mozambique, Namibia, Seychelles, Swaziland, Tanzania and Zambia recognize the ground to preserve mental health as a legal and justifiable ground for abortion. Amongst these countries only Zambia and South Africa recognize the ground of socio-economic reasons as a justifiable ground for abortion and only South Africa recognizes abortion upon request.

 The United State Supreme Court has delivered worthwhile decisions to look at with regards to the issue of abortion which have been largely based on the woman’s liberty and right to privacy. In Roe v Wade, the court affirmed  the position that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. The decision was influenced by Ginsword v Connecticut 1963 where the court struck down a Connecticut anti contraception law on the ground that it intruded the right to marital privacy.

 The court held that the court can only impose basic standards e.g. that the procedure should be carried out by a qualified health professional. 9 states in the U.S.A namely Arizona, Alabama, Georgia, Nebraska, N. California, Louisiana, Idaho have enacted laws law that prohibit abortion at 20 weeks or even earlier based on medical research that concluded  that the fetus at this stage would have developed and can feel pain from the abortion procedure. Arizona’s laws bar abortion at 20 weeks based and this was supported in Isaacson v Horne where the court held that there was scientific evidence to support the states legislatures’ judgment that a fetus of at least 20 weeks development can experience pain.

The findings went to make a finding that a fetus would have developed pain sensors and will react to stimuli, such as a needle which increases blood pressure, heart rate and stress hormones. 

From these competing views, it can be seen that the issue lies not only on the choice women to have the overriding choice in making decisions on their reproductive health but also on the states interests in protecting the life of an unborn baby at stages where it is said the fetus can feel pain. Is it the right time to expand the law on abortion to accommodate grounds such as preservation of mental health, upon request and socio economic reasons particularly taking into account the fact that most Zimbabweans have economic resources to pursue formal abortion requirements? What is clear is the number of unsafe abortions occurring in Zimbabwe is high and calls for government to look into this issue. 

Right to equality and equal treatment before the law s56.

An often underlooked concept in this discussion is the right to equality and equal treatment before the law. From a labour perspective the current abortion laws are an undue encroachment to the right to equality. Section 56(6) of the Constitution implores the state to take reasonable legislative and other measures to promote the archievement of equality and protect and advance people or classes of people who have been disadvantaged by unfair discrimination.

 Zimbabwe’s system after having gone through decades of political repression inherited a largely patriarchal system that heavily weighs against women and their right to equality. The post colonial laws have not sufficiently addressed these issues and with the structural inequality existing between the rich and poor, access to this right has been construed largely against the poor. The current Act predates the independence of Zimbabwe, it was enacted in 1978 at the height of the struggle against the colonial government. Thus the Act isn’t compatible with present day developments with regards to sexual reproductive rights such as abortion. 

A few constitutional provisions will be looked at to drive home this point and show the current setup of our laws unduly violates woman’s right to equality specifically when abortion laws are still restrictive and narrowly defined.. Section 65 of the Constitution grants women the right to maternity leave, it goes without saying this burden of up-keeping the child solely rests upon a woman and not their male counterpart. This provision unlike South Africa’s position which recognizes both maternity and paternity leave is a major obstacle against women’s right to equality. 

This amongst other things violates her right to profession as she has to abandon her job either temporarily or permanently to take care of the child whilst her male counterpart does not. Not only does this violate the right to equal treatment before the law, but also women’s right to being appointed at workplaces whilst their male counterparts enjoy this right. 

Furthermore the obligation to pay for maternity in Zimbabwe rests  on the employerwhich solely burdens him thus it creates a negative discrimination against women when seeking employment in that they will be regarded as ‘expenses’. Closely connected to this, the fact that women have to leave the workplace during birth makes them viewed as burdensome as employers have to hire temporary replacements to cover up for these gaps created. An approach that enjoins the state is in providing for the maternity leave pay will lighten up the burden upon the employer and thus reduce the high chances of discrimination against women when seeking employment. It can be seen that abortion affects many more important rights women have. 

Is it now ripe to expand women’s choice in matters of termination of pregnancy? The Horne case supra had the view that while a state mat regulate the mode and manner of abortion prior to fetal viability, it may not proscribe a woman from electing abortion nor may it impose an undue burden on her choice through regulation. According to Charles Ngwena the World Health Organization has concluded in its report that abortion related deaths in South Africa have significantly declined owing to the states liberalization of the law including allowing trained midwives and registered nurses to perform the abortion procedure during the first 13 weeks of pregnancy.

Proposals 

 Dr Labode has proposed that the law be expanded to allow people suffering from debilitating health conditions such as diabetes and H.I.V & A.I.D.S to be allowed abortion. Whilst welcome and noble this might perpetuate the already existent stigma against people living with H.I.V status. The suggestion also raises a lot of constitutional concerns which are discussed below

It would mean that every H.I.V patient will need to disclose their status as a pre requisite of receiving treatment constituting an encroachment to the right of privacy particularly section 57e of the Constitution which provides that every person has a right a right to privacy, which includes the right not to have their health condition disclosed.

Also there is a strong possibility the suggestion creates psychological stigma and segregation whereby it is felt such groups are receiving special treatment of the law because of their health status thus raising a lot of eyebrows over the right to equal treatment and non discrimination enshrined in section 56 of the Constitution. To add up, government would be required to justify the methodology used in coming up with that policy which allows diabetic and H.I.V positive patients abortion and denying every other sick patient the same right.

From the ongoing discussion it can be seen that the status quo has not archived the best results possible due to the high rise in the number of unsafe abortions in Zimbabwe. What’s clear from the above views is that the Act governing the law of abortion requires the government to look at it with the view of making it easier to access abortion facilities through removing some of the procedural roadblocks such as the requirement of 2 doctors, that abortion be performed strictly in a hospital and putting in place mechanisms that reduce the delays in obtaining a magisterial certificate.

The general approach in the United States is that states have an obligation to limit procedural obstacles to abortion e.g. the requirement by 2 physicians. This approach to limit such obstacles is highly recommended in Zimbabwe as well. 

 An equally plausible case can be made on expanding the grounds of abortion to consider socio-economic circumstances owing to the prevailing economic circumstances in the country and the exorbitant costs of raising a child. This of-course will be allowed in exceptional circumstances. 

Also, the government could train midwives and allow for registered nurses with competent qualifications to perform abortion in the first 13 weeks as is with the case in South Africa is highly recommendable taking into cognizant the limited number of doctors in Zimbabwe as well the fact that training midwives will decentralize services and make them readily accessible in all parts of the country. It should be well stressed that the expansion of these rights and services lie primarily with advocacy camps together with the government in pushing for a more liberal approach to the issue.

REFERENCES

According to Zimstats in the 2012 Zimbabwean census, 67 % of Zimbabweans are in rural areas. Find the report titled Zimbabwe Population census 2012 at  www. zimstat. co.zw

According to World Health Organization, unsafe abortion is defined as a procedure for terminating unwanted pregnancy either by persons lacking necessary skills or in an environment lacking minimum standards or both: W.H.O, The prevention of unsafe abortion (Geneva World Health Organization 1992)

An Appraisal of Abortion Laws in Southern Africa from a Reproductive Health Rights Perspective by Charles Ngwena

Dads are allowed 10 days of paternity leave in South Africa in terms of the Basic Conditions Employment Act, Amended by President Cyrril Ramaphosa see https://businetech.co.za on 10 October 2019 titled South African Fathers have new partenity rights- hers what you need to know.

David Masse, Senior Research Fellow, Pew Forum on Religion and Public life & Ira C Lupu F Elwood & Eleanor Davis, Professor of Law at the College of Washington University

Emmanuel Kate, Investigations Reporter titled Inside Harare ghastly abortion clinics …60000 illegal terminations a year on www. Sundaymail.com on 26 January 2020

Katekwe v Muchabaiwa 1984(2)ZLR 112(S) 

law.jrank. org,,,Abortion laws: Information on the law about abortion state of the statutes

Milddred Mapingure v Minister of Home Affairs SC 22-14

Professor Lovemore Madhuku, Labour Law in Zimbabwe 

Section 48 of the Constitution of Zimbabwe reads that an act of parliament must protect the lives of unborn children and that Act may be terminated only in accordance with that law.

A. Armstrong, Women and Rape in Zimbabwe (Human and Peoples Rights Project Monograph No.10) 

World Health Organization, Unsafe Abortion: Global and Regional Estimates of and Mortality of Unsafe Abortion (Geneva: World Health Organization 1998)

Zimfact.org on November 4, 2014 titled in Facts Reports, Gender Facts