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Community Working Group on Health and Nyasha Batitsa v Minister of Health and Child Welfare and 3 Others
HH-622-25HH-622-252025
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HH-622-25
HCH 931/25
COMMUNITY WORKING GROUP ON HEALTH
And
NYASHA BATITSA
Versus
MINISTER OF HEALTH AND CHILD WELFARE
And
MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
And
THE ATTORNEY-GENERAL OF ZIMBABWE
And
PARLIAMENT OF THE REPUBLIC OF ZIMBABWE
HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
Harare, 12 September, 7 and 8, 13 October, 10 and 11 November 2025
T. BITI, for the applicants
J. SHUMBA for the 1st -3rd respondents
S. HOKO, for the 4th respondent
COURT APPLICATION
CHIRAWU-MUGOMBA J
INTRODUCTION
This is a constitutional application challenging the validity of s 4(a) of the
Termination of Pregnancy Act [Chapter 15:10] (hereinafter referred to as ‘the
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Act’) and the definition of unlawful intercourse in s 2(1) of the Act. This
application is made in terms of s85(1)(d) of the Constitution of Zimbabwe, 2013
(hereinafter referred to as the ‘Constitution’).
The order sought is as follows.
1. That section 4(a) of the Termination of Pregnancy Act [Chapter 15:10] be and is
hereby declared ultra vires the provisions of section 48(1), 51, 53, 78(1) of the
Constitution of Zimbabwe.
2. That section 4(a) of the Termination of Pregnancy Act be and is hereby declared
constitutionally invalid.
3. That the definition of ‘unlawful intercourse’ in section 2(1) of the Termination of
Pregnancy Act [Chapter 15:10] be and is hereby declared to be a breach of
section 48(1, 51, 76 and 56 (1) of the Constitution.
4. That the definition of ‘unlawful intercourse’ in section 2(1) of the Termination of
Pregnancy Act be and is hereby declared to be constitutionally invalid.
5. The above declarations of constitutional invalidity are suspended until such time
as the Constitutional Court has confirmed the same in terms of section 167(3) of
the Constitution of Zimbabwe.
6. The above order of constitutional invalidity is referred to the Constitutional
Court for confirmation in terms of section 175 (1) of the Constitution.
7. There is no order as to costs.
THE APPLICATION
Background facts
The founding affidavit of first respondent is deposed to by one Itai Rusike in his
capacity as the Executive Director of the applicant. He makes the following averments.
The first applicant in this matter is a universitas at law duly registered by a constitution
with the capacity to sue and be sued, whose mandate focuses on attainment and
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actualisation of human rights and equitable health service in Zimbabwe. The second
applicant is a gender -based human rights activist and a member of Parliament. The
first respondent is the Minister of Health and Child Care, who is responsible for
promoting the health and quality of life of Zimbabweans. He is also responsible for
administering the Act. The second respondent is the Minister responsible for providing
and securing and effecting justice delivery, and his responsibilities include
investigating and prosecuting crimes, including violations of the Act and s 60 of the
Criminal Law Codification and Reform Act [Chapter 9:23] (hereinafter referred to as “the
Code”). The third respondent is the Attorney General of Zimbabwe, and she is in charge
inter alia of representing the government of Zimbabwe in all legal and constitutional
matters. The fourth respondent is the Parliament of the Republic of Zimbabwe, the
country’s sole legislative body. It has no direct interest in this matter, but it has only
been cited because the constitutionality of a law is at stake.
The applicants submit that, in 1977, the Act was passed by the Parliament of
Rhodesia, and it was last amended by the Code, which was initially promulgated in
2004 and amended in 2018. Section 60 of the Code criminalises performing an abortion
outside of the perimeters prescribed in the Act. They submit that s 60 of the Code
further provides that performing or receiving an illegal abortion carries a penalty of up
to five years imprisonment and a fine of up to US$700.00. It is the applicants’
submission that this penalty is one of the harshest penalties for abortion in the world.
The applicants contend that the Act prohibits abortion in Zimbabwe except under a
narrow set of circumstances. The applicants submit that the Act allows abortion only: -
1. Where the continued pregnancy endangers the life of the woman concerned or
so constitutes a serious threat and permanent impairment of her physical
health that the termination of the pregnancy is necessary to ensure her life or
physical health.
2. Where there is a serious risk that the child to be born will suffer from a physical
or mental defect of such a nature that he will be permanently seriously
handicapped.
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3. Where there is a reasonable possibility that the foetus is conceived as a result of
unlawful intercourse.
The applicants contend that the above circumstances, as stipulated in the Act,
exclude mental health conditions as a basis for obtaining legal abortion. They further
argue that excluding mental health is unlawful and unconstitutional, as it disregards
the genuine challenges women experience with mental health, including those that
may arise after childbirth. The applicants aver that the legislature’s intention to exclude
mental health from s 4(a) in so far as it relates to the health of the mother was
intentional. It is the applicants’ submission that the law also ought to have allowed
legal abortion where there is a serious risk that the mother suffers from a mental
defect, is mentally handicapped, or would be mentally handicapped or challenged after
giving birth. The applicants contend that this exclusion affects the right to human
dignity of the mother concerned and the right to health of the mothers concerned,
which is codified in s 75 of the Constitution. The applicants submit that mentally ill
patients cannot consent to sexual intercourse, and it follows that any mentally ill
patient must have the right to legal abortion.
They state that s 64(3) of the Code criminalises various forms of sexual activities
with a mentally incompetent person and the charge is rape, indecent of aggravated
indecent assault. The applicants argue that s 106 of the Mental Health Act [ Chapter
15:12] makes it an offence for anyone working in a mental health institution, or having
custody of a mental patient, to engage in sexual intercourse with that patient though
the offence created is not equivalent to rape. However, the definition of unlawful
intercourse in the Act in s2(1) excludes unlawful intercourse as envisaged in s106. This
is a violation of s 48(1), 50, 56(1) and 76 of the Constitution. To show the gravity of the
problem of abortion and its aftereffects, the applicants attach a report titled, ‘National
Assessment on adolescent pregnancies in Zimbabwe’, June 2023, commissioned by UN
Agencies and the government of Zimbabwe.
The applicants locate the application under two broad frameworks as follows: -
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a. That s4(a) of the Act infringes the right of mentally challenged women to safe
and lawful abortion in breach of the rights codified under s48(1), 51, 53, 56(1)
and 78 of the Constitution.
b. S2(1) of the Act in its definition of unlawful intercourse is in breach of the
Constitution in that it excludes intercourse proscribed by s106 of the Mental
Health Act [ Chapter 15:12].
The opposition
The first respondent opposes the application through the person of one
Wenceslas Nyamayaro, the acting Secretary in the Ministry. He submits that section
4(a) does not unlawfully and unconstitutionally discriminate and leave out mental
health patients. 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. Allowing abortion on mental health concerns may lead
to misuse or misinterpretation. Determining mental health threats is subjective, unlike
physical health threats. Mental health concerns can be expanded through broader
psychological and psychiatric support instead of broadening abortion laws.
Additionally, it is dangerous to assume tha t every woman facing mental health
challenges cannot carry a baby to full term.
In his opposing affidavit, the second respondent raised a preliminary objection on the
applicants’ locus standi and that the applicants had not exhausted other available
remedies. Further that the second applicant in identifying as a member of Parliament
and human rights activist, could utilize the avenue of lobbying for the amendment of
the law. Also, that the doctrine of constitutional avoidance and separation of powers is
clear. At the hearing, counsel for the first to third respondents abandoned expressly
the issue of locus standi and implored the court to deal with the merits. It is assumed
that all the other preliminary issues raised were also abandoned. On the merits, the
second respondent avers that while grounds many exist for widening the grounds
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upon which pregnancy may be terminated, it is not the duty of courts to do so as this is
tantamount to usurping the functions of the legislature. While the applicants may
have identified gaps, it is the legislature that must deal with them. This would be
predicated on wide consultations.
The third respondent submits that her mandate is defined in section 114 of the
Constitution and there was no need for her citation in the matter.
The fourth respondent’s stance is that it will abide by the decision of the court.
Answering affidavits
Nothing significant turns on the answering affidavits.
SUBMISSIONS AND HEADS OF ARGUMENT
The first to the third respondents having abandoned the preliminary issues,
there is no need to deal with the heads in respect of these.
Applicants
The applicants implore the court to take a purposive approach that recognises the
right to life. See Mudzuru and anor vs. Ministry of Justice and ors, 2015(2) ZLR 31(S) and,
Chihava and ors vs Principal Magistrate and anor, 2016 (2) ZLR 196 (CCZ). They submit
that the method of establishing invalidity is well set. The first is to determine whether
the provision takes away rights and causes infraction on rights and once this is
established, the second rung is whether the provision is saved by section 86(2) of the
constitution. See Chitungwiza Residents Trust vs Minister of Justice, legal and
Parliamentary Affairs and ors, CCZ 3/22. Section 4(a) of the act infringes section 48(1) of
the Constitution that bestows the right to life. The right to health is recognised in a
plethora of international instruments such as the definition by the WHO, UDHR and the
ICESCR.
Section 4(a) excludes the rights of a mother in relation to mental health.
Section 56 (a) of the Constitution is about equality before the law. There is no provision
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in any act of Parliament that creates differential treatment for women and men, yet
section 4(a) of the Act does.
Further, that, the constitutional right threshold has been set in a number of
cases – see Chimakure and ors vs. AG, (2013) (2) ZLR 466 (S). The approach adopted pre
2013 constitution in cases such as In Re Munhumeso and ors, 1994(1) ZLR 49(S) and
Nyambirai vs NSSA, 1995(2) ZLR 1(S) is still valid post 2013. This is premised on a high
threshold justifying limitations to a right. The standard set by the court is as adopted
from the Canadian case of R vs Oakes, 1996(1) SCR 103 as follows. (1) Whether the
limitation serves a legitimate purpose which is sufficiently important in a free
democratic country (2) whether the limitation is rationally connected to the said
objective (3) whether the limitation impairs the right as little as possible and (4)
whether the actual benefits of the limitation are proportionate to its meritorious
consequences for the right order. Section 86(2) of the constitution sets out the
sequential logic of the analysis of the rights concerned.
First to third respondents
The respondents submit that every law is presumed to be constitutionally valid until it
is set aside including a law that is being challenged as in casu. The court must be
satisfied that the order sought represents a correct interpretation of the law- S v
Chakumba, CCZ-10-19 and Mupungu v Minister of Justice, legal and Parliamentary Affairs
and ors, CCZ-7-21. The issue of constitutional invalidity does not arise in this matter.
What remains is for Parliament to amend the impugned provisions of the Act to
address the gaps properly identified.
Observations
Before dealing with the legal issues for determination, it will be remiss of me not to
comment on the nature and presentation of the application. In my view, while the
issues at hand can be determined, the presentation of the applicants’ case could have
been done better. It criss -crosses from one point to the next in a sometimes-
incoherent manner.
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ISSUES FOR DETERMINATION
It is imperative that I set out the relevant legal provisions in the Act on definition of
unlawful intercourse and circumstances under which pregnancy can be terminated as
follows: -
“unlawful intercourse” means 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.
4. Circumstances in which pregnancy may be terminated
Subject to this Act, a pregnancy may be terminated—(a)where the continuation of the pregnancy so
endangers the life of the woman concerned or so constitutes a serious threat of permanent impairment of
her physical health that the termination of the pregnancy is necessary to ensure her life or physical health,
as the case may be; or
On the other hand, section 106 of the Mental Health Act states:
“106. Unlawful sexual intercourse with patients
(1) Subject to this section, any person who—
(a) being employed in or at an institution, special institution or other place where a patient is
detained or receiving treatment in terms of this Act, has sexual intercourse with the
patient; or
(b) having the custody, care or charge of any patient in terms of this Act, has sexual
intercourse with the patient;
shall be guilty of an offence and liable to a fine not exceeding level seven or to
imprisonment for a period not exceeding five years or to both such fine and such
imprisonment.
(2) For the purposes of subs (1), a patient shall be deemed to be detained in an institution,
special institution or other place or to be in custody, care or charge, even though he may
have escaped therefrom or be absent therefrom with or without leave, until he is duly
discharged or ceases to be in such custody, care or charge in terms of this Act.
(3) It shall be a defence to a charge under subs (1) for the accused person to prove that,
when the alleged offence was committed—
(a) he was the spouse of the patient concerned; or
(b) he did not know and had no reason to believe or suspect that the patient concerned was
detained or receiving treatment in the institution, special institution or place concerned
or that the patient was in his custody, care or charge, as the case may be.
(4) The consent of the patient concerned shall not be a defence to a charge under subs (1).”
The Mental Health Act defines a patient as follows,
“patient” means a person—(a)who is mentally disordered or intellectually handicapped; or(b)concerning
whom proceedings under this Act are considered necessary to determine whether or not he is mentally
disordered or intellectually handicapped;
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In terms of s 171 of the Constitution, the High Court has jurisdiction to
adjudicate on constitutional matters, except in cases where exclusive jurisdiction is
reserved for the Constitutional Court. Section 171 states that:
“(1) The High Court—
(a) has original jurisdiction over all civil and criminal matters throughout Zimbabwe;
(b) has jurisdiction to supervise magistrates courts and other subordinate courts and to review
their decisions;
(c) may decide constitutional matters except those that only the Constitutional Court may decide; and
(d) has such appellate jurisdiction as may be conferred on it by an Act of Parliament.” (emphasis
added)
This provision underscores the centrality of the High Court as a court of
first instance, with wide jurisdiction over both ordinary and constitutional matters,
subject only to the limits imposed by the Constitution itself. Litigants may approach the
High Court through a court application in terms of r 107 of the High Court Rules, 2021.
The High Court’s jurisdiction and power to deal with applications for constitutional
invalidity were authoritatively affirmed in Combined Harare Residents’ Association & Ors v
The Minister of Local Government, Public Works and National Housing CCZ-3-24 at pg. 13:
“As stated above, it is my finding that the High Court ordinarily has jurisdiction to make an order
of constitutional invalidity of any law, practice, custom, or conduct. The applicable cause of action
in such matter among others is the principle of legality and in particular the ultra vires doctrine.”
Thus, the jurisdiction conferred upon the High Court by s 171 of the Constitution,
coupled with the procedural framework under the High Court Rules, positions it as a
vital forum for the protection and enforcement of constitutional rights.
Given the above jurisdiction of the High Court, in my view the legal issues for
determination are as follows: -
1. Whether or not s 4(a) of the Act infringes the right of mentally challenged
women to safe abortion in breach of the rights codified in s48, 51, 53, 78 and
56(1) of the Constitution?
2. Whether or not s2(1) of the Act in its definition of unlawful intercourse is in
breach of s48, 51, 56(1) of the Constitution in that it excludes lawful abortion
from sexual intercourse proscribed by s106 of the Mental Health Act?
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3. The appropriate remedy?
APPLICATION OF LAW TO THE FACTS
Whether or not s 4(a) of the Act infringes the right of mentally challenged women
to safe abortion in breach of the rights codified in s48, 51, 53, and 56(1) of the
Constitution?
It is the applicant’s contention that s 4(a) of the Act infringes the right of mentally
ill women to safe and lawful abortion in breach of their rights codified by ss 48(1), 52,
53 and 56(1) of the Constitution. The applicants submit that s 4(a) of the Act is an
infringement of the right to life, right to health and the right to human dignity.
Contrastingly, the first and second respondents submit that s 4(a) does not unlawfully
and unconstitutionally discriminate and leave out mental health patients. It is their
contention that severe mental health conditions that threaten a mother’s life are
already covered under the provision and medical professionals can assess whether a
mental health condition has such a severe impact that it necessitates abortion under
the current law. Moreover, they submit that mental health concerns can be addressed
through expanded access to psychological and psychiatric support instead of
broadening abortion laws. The applicants have pleaded what is called under
constitutional law, the principle of disparate impact. A glance at comparative
jurisdiction will illustrate this constitutional principle. It speaks to a seemingly neutral
law, but one that has a different impact on different groups.
In South Africa, the Constitutional Court recognised indirect discrimination in City
Council of Pretoria v Walker 1998 (2) SA 363. The case involved different billing and debt
collection systems for historically white suburbs and black townships. Although the
policy was facially neutral, its practical effect corresponded to racial divisions, with
white residents facing stricter debt enforcement and higher charges. The Court held
that this differential impact along racial lines amounted to unfair discrimination
because it reinforced historic inequalities and burdened individuals arbitrarily. The
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Constitutional Court of South Africa, on pg. 22 - 24 para 28 - 32 of the judgment held
that:
“The four judgments of this Court to which I have referred 24 were all delivered after the
judgment of the High Court in this case. They deal extensively with the equality provision
in the interim Constitution and analyse the concept of discrimination.
[29] In Harksen we held that the enquiry as to whether differentiation amounts to unfair
discrimination is a two-stage one.
(a) Firstly, does the differentiation amount to discrimination? If it is on a specified
ground, then discrimination will have been established. If it is not on a specified ground,
then whether or not there is discrimination will depend upon whether, objectively, the
ground is based on attributes and characteristics which have the potential to impair the
fundamental human dignity of persons as human beings or to affect them adversely in a
comparably serious manner.
(b) (ii) If the differentiation amounts to discrimination, does it amount to unfair
discrimination? If it has been found to have been on a specified ground, then unfairness
will be presumed. If on an unspecified ground, unfairness will have to be established by
the complainant.
The test of unfairness focuses primarily on the impact of the discrimination on the
complainant and others in his or her situation.
[30] Section 8(2) prohibits unfair discrimination which takes place (a) directly or indirectly.
This is the first occasion on which this Court has had to consider the difference between
direct and indirect discrimination and whether such difference has any bearing on the
section 8 analysis as developed in the four judgments to which I have referred.
[31] The inclusion of both direct and indirect discrimination within the ambit of the
prohibition imposed by section 8(2) evinces a concern for the consequences rather than
the form of conduct. It recognises that conduct which may appear to be neutral and non-
discriminatory may nonetheless result in discrimination, and if it does, that it falls within
the purview of section 8(2).
[32] The emphasis which this Court has placed on the impact of discrimination in deciding
whether or not section 8(2) has been infringed is consistent with this concern. It is not
necessary in the present case to formulate a precise definition of indirect discrimination.
The conduct of which the respondent complains is summarised in paragraph 6 of this
judgment. It is sufficient for the purposes of this judgment to say that this conduct which
differentiated between treatment of residents of townships which were historically black
areas and whose residents are still overwhelmingly black, and residents in municipalities
which were historically white areas and whose residents are still overwhelmingly white
constituted indirect discrimination on the grounds of race.” (underlining for emphasis)
The Court found that although the policy was not explicitly race-based and
was more geographical, in practice the differential treatment aligned with racial
divisions as residents of the black townships were paying a flat lower rate and were
given leniency on arrears, while white residents bore higher costs and strict
enforcement. This constituted indirect discrimination based on race, since the policy’s
effect was to favour one racial group over another. This case underscored that a law
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may be unconstitutional if its implementation indirectly entrenches disadvantage, even
without express racial classifications.
In Canada, equality jurisprudence under s 15 of the Canadian Charter of Rights and
Freedoms similarly emphasises the effects of a law over its form. In Andrews v Law
Society of British Columbia [1989] 1 SCR 143, the Supreme Court held that equality is
breached when a law imposes burdens or denies benefits based on irrelevant personal
characteristics, regardless of intent. Per Dickson C.J. and McIntyre, Lamer, Wilson and
L'Heureux-Dubé JJ, at p. 3, the court held:
“Section 15(1) of the Charter provides for every individual a guarantee of
equality before and under the law, as well as the equal protection and equal
benefit of the law without discrimination...
…The words "without discrimination" in s. 15 are crucial. Discrimination is a distinction
which, whether intentional or not but based on grounds relating to personal
characteristics of the individual or group, has an effect which imposes disadvantages not
imposed upon others or which withholds or limits access to advantages available to other
members of society. Distinctions based on personal characteristics attributed to an
individual solely on the basis of association with a group will rarely escape the charge of
discrimination, while those based on an individual's merits and capacities will rarely be so
classed.”
In, Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, the
Constitutional Court found that failure to provide sign-language interpreters in
hospitals excluded deaf patients from effective access to healthcare, amounting to
unconstitutional discrimination by omission. It held as follows,
“The only question in this case is whether the appellants have been afforded “equal
benefit of the law without discrimination” within the meaning of s. 15(1) of the Charter.
On its face, the medicare system applies equally to the deaf and hearing populations.
The appellants’ claim, nevertheless, is one of “adverse effects” discrimination, protection
against which is provided by s. 15(1) of the Charter. A discriminatory purpose or intention
is not a necessary condition of a s. 15(1) violation. A legal distinction need not be
motivated by a desire to disadvantage an individual or group in order to violate s. 15(1).
It is sufficient if the effect of the legislation is to deny someone the equal protection or
benefit of the law. Adverse effects discrimination is especially relevant in the case of
disability. In the present case the adverse effects suffered by deaf persons stem not from
the imposition of a burden not faced by the mainstream population, but rather from a
failure to ensure that deaf persons benefit equally from a service offered to everyone.”
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Most recently, in Fraser v Canada (Attorney General) [2020] 3 SCR 113, a rule on
pensionable service credits disproportionately disadvantaged women who opted for
job-sharing. The Court reaffirmed that adverse impact discrimination is
unconstitutional, holding that “effects, not just purposes,” determine equality
violations. Under the Charter’s limitations clause, the state bears the burden of
justifying such an impact, a principle mirrored in s 86 of Zimbabwe’s Constitution.
In contrast, in the United States, constitutional equal protection claims generally
require proof of discriminatory intent. In Washington v Davis, 426 U.S. 229 (1976), a
neutral police recruitment test that excluded a higher percentage of black applicants
was upheld because there was no evidence of intentional racial bias. The Supreme
Court in this case held that:
“The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the
prevention of official conduct discriminating on the basis of race. It is also true that the Due
Process Clause of the Fifth Amendment contains an equal protection component prohibiting the
United States from invidiously discriminating between individuals or groups. Bolling v. Sharpe,
347 U. S. 497 (1954). But our cases have not embraced the proposition that a law or other official
act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional
solely because it has a racially disproportionate impact.
Almost 100 years ago, Strauder v. West Virginia, 100 U. S. 303 (1880), established that the
exclusion of Negroes from grand and petit juries in criminal proceedings violated the Equal
Protection Clause, but the fact that a particular jury or a series of juries does not statistically
reflect the racial composition of the community does not, in itself, make out an invidious
discrimination forbidden by the Clause.
A purpose to discriminate must be present which may be proven by systematic exclusion of
eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to
show intentional discrimination.”
Thus, under United States constitutional law, a disparate impact alone does not
establish a violation. However, United States statutory law, through measures such as
the Civil Rights Act 1964 and the Fair Housing Act, does recognise disparate impact
discrimination. Likewise, in Griggs v Duke Power Co. 401 US 424 (1971) and Texas Dept. of
Housing v Inclusive Communities Project 576 US 519 (2015), the burden was shifted to
employers or institutions to justify neutral practices that disproportionately affect
protected groups.
In the United Kingdom, the Equality Act 2010 explicitly prohibits indirect
discrimination, defining it as a neutral provision, criterion, or practice that places a
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protected group at a particular disadvantage unless objectively justified. For example, a
full-time work requirement may indirectly discriminate against women who need
flexible hours for caregiving.
At the European level, the European Court of Human Rights (ECHR) in D.H. & Ors
v Czech Republic [GC] (Application No. 57325/00) 2007, recognized that policies
producing disproportionate adverse effects on particular groups can violate Article 14
of the European Human Rights Convention (non-discrimination) taken together with
Article 2 of Protocol No. 1. The Court found that the practice of placing Roma children
in “special schools” based on neutral testing criteria was indirectly discriminatory
because of its statistically proven disparate impact on Roma pupils and lack of objective
justification. The Court affirmed that a measure “not specifically aimed at a group” may
still be discriminatory if it produces unjustified inequality in effect.
The preponderant view from this comparative therefore is that a law that
excludes a certain group from its benefits or protections or imposes burdens in a way
that impacts one group more than others can amount to unlawful discrimination, even
if the law is neutral on its face. The key is whether the effects of the law undermine the
guarantee of equal protection of the laws and substantive equal enjoyment of rights.
In Chikutu & Ors v Minister of Lands, & Ors CC27/23 para 45-47, the court had
this to say,
“[45] The Constitution is a statute. As such, it is subject to the established canons of interpretation.
Accordingly, a court must construe the provisions of the Constitution literally to give effect to its
ordinary meaning unless doing so would result in an absurdity. Where, however, this is not
possible, a court is enjoined to construe the provisions in a manner that gives effect to the rights
being protected.
[46] As submitted by Mr. Biti, the Constitution is a product of negotiation between various
stakeholders and thus embodies the values and aspirations of the people of Zimbabwe. It marks a
departure from a colonial past. It has a bill of rights that is justiciable that is binding on all arms of
the State and the citizenry at large.
[47] With these principles in mind, the Court must then examine the constitutional provision to
determine its meaning and interpret the challenged legislation to decide if the alleged violations
have been established. This accords with canons of interpretation and has been emphasized time
and time by the courts in this jurisdiction in a long line of authorities. The approach by the court
was settled by GUBBAY CJ in In Re Munhumeso & Ors 1994(1) ZLR 49(S), at 59B-E, where the learned
former Chief Justice said the following:
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‘Two general interpretational principles are to be applied. The first was lucidly expressed
by Georges CJ in Zimbabwe Township Developers (Pvt) Ltd v Lou‘s Shoes (Pvt) Ltd 1983 (2) ZLR
376 (S) at 382B-D; 1984 (2) SA 778 (ZS) at 783A-D, to this effect:
‘Clearly a litigant who asserts that an Act of Parliament or a Regulation is unconstitutional
must show that it is. In such a case the judicial body charged with deciding that issue
must interpret the Constitution and determine its meaning and thereafter interpret the
challenged piece of legislation to arrive at a conclusion as to whether it falls within that
meaning or it does not. The challenged piece of legislation may, however, be capable of
more than one meaning. If that is the position then if one possible interpretation falls
within the meaning of the Constitution and others do not, then the judicial body will
presume that the law makers intended to act constitutionally and uphold the piece of
legislation so interpreted. This is one of the senses in which a presumption of
constitutionality can be said to arise. One does not interpret the Constitution in a
restricted manner in order to accommodate the challenged legislation. The Constitution
must be properly interpreted, adopting the approach accepted above. Thereafter the
challenged legislation is examined to discover whether it can be interpreted to fit into the
framework of the Constitution.’
From the above case, it follows that Constitutional interpretation is not merely a
mechanical exercise, the court must give effect to the purpose and spirit of the
Constitution. The court must avoid interpretations that narrow or undermine
fundamental rights as this would weaken the transformative nature of the
Constitution. At the same time, the presumption of constitutionality requires that
legislation be upheld where possible, provided rights are not rendered meaningless.
The court must therefore balance giving full effect to the rights in the Bill of Rights with
respecting Parliament’s role in enacting laws within constitutional limits.
This assertion was well articulated in the case Buchanan & Co v Babco Ltd (C.A.) [1977]
QBC 208 at 213, as Lord Denning held that:
“When they come upon a situation which is to their minds within the spirit-but not the letter- of
the legislation, they solve the problem by looking at the design and purpose of legislation- at the
effect which it was sought to achieve. They then interpret the legislation so as to achieve the
desired effect. This means that they fill in gaps, quite unashamedly. Without hesitation. They ask
simply, what is the sensible way of dealing with this situation so as to give effect to the presumed
purpose of the legislation? To our eyes- shortsighted by tradition- it is legislation, pure and simple.
But to their eyes, it is fulfilling the true role of the courts. They are giving effect to what the
legislature intended or may be presumed to have intended.” [my emphasis]
This framework guides the examination of s 4(a) of the Act to determine whether
excluding mental health as a ground for abortion unjustifiably limits the constitutional
rights claimed by the applicants.
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The first respondent avers that s 4(a) of the Act may be interpreted to include
severe mental health conditions under the existing “life-threatening” provision. It
becomes necessary to interrogate what the term ‘life-threatening’ entails. According to
the Meriam Webster Dictionary, the term life-threatening is defined as follows:
“capable of causing death: potentially fatal”. The Advanced Learner Oxford Dictionary
(8th Ed) 2010 describes the term as “Likely to kill”.
Considering the above definitions, mental health is incapable of causing death.
Life-threatening in these circumstances would mean health implications that may
potentially cause death to the mother during childbirth or in the continued process of
carrying the baby to term. Such an interpretation is not explicit and may leave women
with mental health challenges without clear protection. However, attention must be
drawn to the first part of s 4(a), which provides that:
“where the continuation of the pregnancy so endangers the life of the woman concerned…”
A pregnant woman living with a mental health condition may face serious risks if
she is not in a stable state of mind, as this could compromise her ability to maintain the
pregnancy safely or care for herself adequately. In such circumstances, continuing with
the pregnancy may endanger her life. The court, vested with the constitutional
responsibility of developing the law in the interests of justice, could interpret the
relevant provision to encompass mental health. I am mindful of the dynamics of such
an approach. Such a wide interpretation may carry inherent risks, as it may be
construed as the court giving a different intention than that of the legislature.
Currently, the Act does not explicitly recognize mental health as a ground for
termination. To introduce such a basis through judicial interpretation may therefore
blur the line between interpreting and making law. From the research attached by the
applicants, it is clear that society’s understanding of mental health has advanced and
perhaps, it becomes essential for legal frameworks to evolve in tandem. Mental health
is now widely acknowledged as a critical determinant of individual well-being and once
neglected, woman who suffer from such condition may suffer the impact of unwanted
pregnancies which may come because of abuse. Incorporating mental health
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considerations under the Act would not only align the law with contemporary medical
and ethical standards but also ensure that it continues to serve its intended purpose
effectively. Such a revision would reflect a commitment to upholding the dignity and
rights of all individuals, acknowledging that mental health is integral to overall health.
But the law and morals may be linked but are different-see the famous Hart-Fuller
debate on law and morals.
Given the Constitution’s transformative purpose and the obligation to
interpret rights generously, the exclusion of mental health as a distinct ground for
lawful abortion raises serious concerns about the effective enjoyment of rights to
dignity, bodily integrity, equality, and freedom from inhuman treatment. If an
exclusionary law cannot be defended as a permissible limitation under s 86(2) of the
Constitution, which requires the restrictive law to be fair, reasonable, necessary, and
justifiable in an open, just and free society, then it will be struck down or require
amendment.
The applicants have well - articulated the impact of the exclusion of mental health as a
ground to access safe abortion. Therefore, s 4 (a) in my view, to the extent that it
excludes mental health, does not meet the standards enunciated in the Constitution
and precedents set on the interpretation of the relevant sections. It is clear that
women with mental health challenges are treated differently when it comes to the
permissible health related and permitted grounds for termination.
Whether or not s2(1) of the Act in its definition of unlawful intercourse is in
breach of s48, 51, 56(1) of the Constitution in that it excludes lawful abortion from
sexual intercourse proscribed by s106 of the Mental Health Act?
In relation to the definition of unlawful intercourse, the applicants argue that the
offence is separate and distinct from rape as defined under s 63 of the Code. However,
while s 2(1) of the Act defines unlawful intercourse for the purposes of termination of
pregnancy, pregnancy arising from sexual intercourse prohibited under s 106 of the
Mental Health Act is not expressly included. This omission to recognise such pregnancy
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as resulting from “unlawful intercourse” amounts to a violation of constitutional rights
protected under ss 48, 50, 56(1) and 76 of the Constitution of Zimbabwe.
Per contra, the first respondent argues that expressly including mental health as a
ground for termination of pregnancy would be discriminatory, as it presumes that all
mental health conditions carry the same prognosis. They further submit that the
Diagnostic and Statistical Manual of Mental Disorders lists over seventy diagnoses,
which may present as mild, moderate, or severe. The first respondent postulates that
most mental health conditions are treatable, and even those requiring long-term
medication allow patients to live stable lives, comparable to individuals managing
other chronic conditions. Thus, making a blanket assumption that every woman
diagnosed with a mental health condition is incapable of carrying a pregnancy to term
or raising a child would amount to discrimination.
It is now well established that to be granted relief on the basis that the right
under s 56(1) of the Constitution has been violated, an applicant must prove that they
were denied the same protection of the law which was, however, afforded others in the
same situation – see Nkomo v Minister of Local Government, Rural & Urban Development &
Ors CCZ 6/16.
The assessment of whether a law or action violates constitutional provisions was
outlined by the authors Currie and De Waal in The Bill of Rights Handbook, 6th ed (2013)
at pg. 133 as follows:
“Constitutional interpretation is the process of determining the meaning of a constitutional
provision. More narrowly, for purposes of Bill of Rights cases, the aim of interpretation is to
ascertain the meaning of a provision in the Bill of Rights in order to establish whether law or
conduct is inconsistent with that provision. Interpretation therefore involves two enquiries: first the
meaning or scope of a right must be determined, then it must be determined whether the challenged
law or conduct conflicts with the right”. (emphasis added)
The above approach has been adopted by the courts in our jurisdiction, as evinced
by the case of Chituku & Ors v Minister of Lands, Agriculture, Climate and Rural
Resettlement & Ors CCZ 03-23 at pg. 15 paragraph 47:
“With these principles in mind, the Court must then examine the constitutional provision to determine
its meaning and interpret the challenged legislation to decide if the alleged violations have been
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established. This accords with canons of interpretation and has been emphasized time and time by
the courts in this jurisdiction in a long line of authorities. The approach by the court was settled by
Judgment No. CCZ 03/23 Constitutional Application No. CCZ 02/22 16 GUBBAY CJ in In Re
Munhumeso & Ors 1994(1) ZLR 49(S), at 59B-E, where the learned former Chief Justice said the
following:
“Two general interpretational principles are to be applied. The first was lucidly expressed by
Georges CJ in Zimbabwe Township Developers (Pvt) Ltd v Lou‘s Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S)
at 382B-D; 1984 (2) SA 778 (ZS) at 783A-D, to this effect: ‘Clearly a litigant who asserts that an Act
of Parliament or a Regulation is unconstitutional must show that it is. In such a case the judicial
body charged with deciding that issue must interpret the Constitution and determine its meaning and
thereafter interpret the challenged piece of legislation to arrive at a conclusion as to whether it falls
within that meaning or it does not . The challenged piece of legislation may, however, be capable of
more than one meaning. If that is the position then if one possible interpretation falls within the
meaning of the Constitution and others do not, then the judicial body will presume that the law
makers intended to act constitutionally and uphold the piece of legislation so interpreted. This is
one of the senses in which a presumption of constitutionality can be said to arise. One does not
interpret the Constitution in a restricted manner in order to accommodate the challenged
legislation. The Constitution must be properly interpreted, adopting the approach accepted
above. Thereafter the challenged legislation is examined to discover whether it can be interpreted
to fit into the framework of the Constitution.’
See also Minister of Home Affairs v Bickle & Ors 1983 (2) ZLR 431 (S) at 441E–H, 1984 (2) SA 39 (ZS) at
448F–G; S v A Juvenile 1989 (2) ZLR 61 (S) at 89C, 1990 (4) SA 151 (ZS) at 167G–H.” (emphasis added)
Thus, when a court is faced with a challenge against a particular law on the basis
that it contravenes constitutional rights, the court must establish the scope of the
rights alleged to be infringed and determine whether the impugned law so infringes
constitutional rights. The challenger of any particular law must also provide evidence
of how the constitutional rights have been infringed by the law in question. In casu, the
applicants contend that their right to equal protection of the law contained in s 56(1)
was violated. The section provides that:
“All persons are equal before the law and have the right to equal protection and benefit of the
law.”
In interpreting s 56(1), the Constitutional Court in Gonese v Minister of Finance and
Economic Development CCZ 11-23 pg. 22 paragraph 53, held as follows:
“This Court has, on several occasions in the past, defined the import of the right under s 56(1) of
the Constitution. In short, it is a non-discrimination provision which guarantees equality before
the law. It is different from s 18(1) of the former Constitution which provided for a general right to
the protection of the law. S 56(1) of the Constitution envisages a law which provides for equality in
the protection and benefit of persons affected by it and the right not to be subjected to conduct
or treatment to which others similarly placed are not. As remarked in Minister of Justice, Legal and
Parliamentary Affairs & others v Chinanzvavana & Anor S 119-21, a decision of the Supreme Court of
Zimbabwe, which no doubt correctly reflects the law in this country, the provision simply
guarantees equality before the law. A person alleging a violation of a s 56(1) right
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must not only prove unequal or different treatment but also that others in a similar provision
were afforded such protection.”
Similarly, in Nkomo v Minister of Local Government, Rural and Urban Development & Ors
CCZ 6-16 pg. 8 it was held that:
“The right guaranteed under s 56(1) is that of equality of all persons before the law and the right
to receive the same protection and benefit afforded by the law to persons in a similar position. It
envisages a law which provides equal protection and benefit for the persons affected by it. It
includes the right not to be subjected to treatment to which others in a similar position are not
subjected. In order to found his reliance on this provision the applicants must show that by virtue
of the application of a law he has been the recipient of unequal treatment or protection that is to
say that certain persons have been afforded some protection or benefit by a law, which protection
or benefit he has not been afforded; or that persons in the same (or similar) position as himself
have been treated in a manner different from the treatment meted out to him and that he is
entitled to the same or equal treatment as those persons.”
In Moyo v Minister of Local Government, Rural &Urban Development & 2 Ors CCZ 6-16 at
pg. 8, it was held that:
“In order to found his reliance on this provision the applicants must show that by virtue of the
application of a law he has been the recipient of unequal treatment or protection that is to say
that certain persons have been afforded some protection or benefit by a law, which protection or
benefit he has not been afforded.…...”
The fundamental principle underlying the right to equal protection and benefit of
the law is that individuals who are in comparable circumstances should not be treated
differently unless there are strong and legitimate reasons that justify such differential
treatment. In this context, the definition of “unlawful intercourse” in s 2(1) of the Act is
problematic, as it does not extend protection to persons who are mentally ill. This
omission results in a discriminatory effect, particularly when considered alongside
other statutory provisions such as s 106 of the Mental Health Act, which expressly
criminalizes sexual intercourse with mentally ill persons on account of their
vulnerability and inability to consent. The inconsistency between these legislative
frameworks undermines the principle of equality before the law. It is, therefore,
imperative that s 2 of the Act be amended to expressly include mentally ill persons
within the scope of “unlawful intercourse,” thereby ensuring that the law provides
consistent and equal protection to all vulnerable groups.
Further, the applicants contend that the definition of “unlawful intercourse”
contained in s 2 of the Act infringes upon their constitutional right to health care as
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guaranteed under s 76 of the Constitution. Section 76 provides in clear and mandatory
terms that:
“76 Right to health care
(1) Every citizen and permanent resident of Zimbabwe has the right to have access to basic health-
care services, including reproductive health-care services.
(2) Every person living with a chronic illness has the right to have access to basic healthcare
services for the illness.
(3) No person may be refused emergency medical treatment in any health-care institution.
(4) The State must take reasonable legislative and other measures, within the limits of the
resources available to it, to achieve the progressive realization of the rights set out in this s.”
The applicants argue that by excluding mentally ill persons from the statutory
definition of “unlawful intercourse,” s 2 of the Act indirectly denies them full access to
reproductive health-care services. Victims of sexual exploitation who are mentally ill
may face legal and procedural barriers to accessing safe termination of pregnancy,
notwithstanding their heightened vulnerability and inability to provide informed
consent to sexual relations. This undermines subs (1), which guarantees access to basic
health-care services, including reproductive health care, and is inconsistent with the
State’s obligation under subs (4) to enact reasonable legislative measures to
progressively realize this right.
In effect, the omission creates a category of mentally ill women and girls whose
access to reproductive health care is curtailed, thereby perpetuating inequality and
compounding their vulnerability. Thus, legislative reform is required to harmonise the
Act with the constitutional guarantees under s 76, ensuring that mentally ill persons
are not excluded from the full protection of reproductive health rights.
The applicants argue that the definition in s 2(1) of the Act is unconstitutional, as it
excludes pregnancies arising from the sexual exploitation of mental health patients
from the definition of “unlawful intercourse”. This exclusion undermines their right to
life under s 48(1), as forcing them to carry such pregnancies may endanger their
physical and mental health, and constitutes a failure by the state to protect vulnerable
individuals.
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Section 48(1) of the Constitution states that every person has the right to life.
This section guarantees the fundamental right to life, which includes not only
protection from arbitrary deprivation of life but also imposes a duty on the state to
safeguard and preserve the lives of its citizens, particularly those who are vulnerable.
In this case, the applicants argue that s 2(1) of the Act infringes on the right to life
protected under s 48(1) of the Constitution by failing to recognise pregnancies
resulting from the sexual exploitation of mental health patients as arising from
“unlawful intercourse.” Although s 106 of the Mental Health Act criminalizes sexual
relations with mental patients under institutional care, the exclusion of such acts from
the definition of unlawful intercourse denies these women access to legal abortion.
This omission places them at risk of being forced to carry pregnancies that may
threaten their physical and mental health, thereby undermining the state's duty to
protect their lives. By not explicitly including such vulnerable individuals within the
scope of legal protection, the law fails to uphold the right to life, especially for those
who may not be able to consent or protect themselves, thus violating both their dignity
and their constitutional rights.
In, S v Makwanyane (1995), 1995 (3) SA 391, the Court emphasized the inherent
dignity of every person as part of the right to life, reinforcing the principle that life
should be lived with dignity and not reduced to mere survival.
In that light, it is my considered view that excluding mental health in the definition of
unlawful intercourse, as proscribed in s106 of the Mental Health Act denies women in
such circumstances access to safe abortion services.
What is the remedy?
The second respondent proposes that the challenges exposed by the applicants
point to the necessity of the Parliament of Zimbabwe to enact laws to remedy them.
This speaks to the doctrine of the separation of powers. This is a foundational
constitutional principle that assigns distinct functions to each branch of government,
thereby ensuring that the Legislative, Executive and Judicial arms operate
independently and without improper interference from one another. Under this
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arrangement, the legislature is responsible for making, amending and repealing laws.
The Executive is tasked with implementing and enforcing those laws. The Judiciary has
the role of interpreting the laws and adjudicating disputes. By vesting separate powers
in each branch, the Constitution aims to prevent the concentration of authority in any
single institution, thereby protecting individual liberty and maintaining a system of
checks and balances within the state.
While the principle of separation of powers is respected, courts may
exceptionally assume a limited law-making role where it is necessary. This occurs when
judicial intervention is necessary to uphold constitutional rights, fill legal gaps, or
develop the common law in line with evolving social values and constitutional
principles. See Admark Moyo, Basic Tenets of Zimbabwe’s New Constitutional Order. In
Zimbabwe and other common-law jurisdictions, this judicial role is recognized as both
legitimate and, at times, essential.
The author, C. Botha in Statutory Interpretation – An Introduction for Students, 5th ed
(2012) at pg. 162
notes the following concerning the court’s role as a lawmaker:
“Because of the limitations inherent in language, statutory interpretation necessarily
involves a type of delegation by the legislature to the judiciary about the final, specific
application of a general rule. Although the legislature has the main legislative powers,
those powers are not exclusive, since the courts play a supporting role – the legislature
and judiciary are partners in the law-making process. This principle was explained very
well in Zimnat Insurance Co Ltd v Chawanda 1991 (2) SA 825 (ZSC) 832H-I:
“It sometimes happens that the goal of social and economic changes is reached
more quickly through legal development by the judiciary than by the legislature. This is
because judges have a certain amount of freedom or latitude in the process of
interpretation and application of the law. It is now acknowledged that judges do not
merely discover the law, but they also make the law. They take part in the process of
creation. Law-making is an inherent and inevitable part of the judicial process.”
Thus, courts can engage in law-making in three principal contexts as follows:
i. To develop the common law
The Courts may develop the common law incrementally to ensure that judge-made
doctrines align with the Constitution. Section 46(2) of the Constitution expressly
empowers courts to interpret rights in ways that develop the law. The decision in Bhila
v Master of the High Court supra illustrates this, where the High Court departed from
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outdated common-law rules that discriminated against children born out of wedlock,
thereby modernising the law to reflect equality and constitutional justice. In departing
from the common law position, the court held on page 767 C that:
“The common law position of excluding children born out of wedlock violated the
constitutional rights to protection of the law and freedom from discrimination. These rights have
always been in the Zimbabwean Constitution the old Act 1979 and have been more pronounced
by the wording in the new Act, The Constitution of Zimbabwe Amendment (No. 20) Act 2013. I
propose to revisit the constitutional provisions after a brief discussion of the Deceased Estate
Succession Act [Chapter 6:02].”
ii. To align the law with constitutional norms
Secondly, courts may act as quasi-legislators when fashioning constitutional remedies.
When statutes are unconstitutional, courts sometimes ‘read in’, ‘read down’ or strike
down the whole provision to cure defects. In the case of Kawenda v Minister of Justice
CCZ 3-22, the Constitutional Court declared ss 70, 76, 83 and 86 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] unconstitutional as far as they set the age
of sexual consent at 16. It found that the sections did not align with s 81 of the
Constitution, which describes a child as anyone below the age of 18. In that regard, it
found that the provisions failed to protect children between 16- 18 by placing the age
of sexual consent at 16. It was this landmark ruling that saw the age of sexual consent
raised to 18. The court went on to give legislature a period of 12 months to enable
legislature to enact a law that protects all children from sexual exploitation in
accordance with s 81 of the Constitution. This illustrates that even when a court
declares a law to be unconstitutional, it still recognises the legislature’s ongoing role,
giving that branch the space and responsibility to align legislation with constitutional
requirements.
Further, in the Mudzuri case, supra, the court made a finding that the minimum age
of marriage in Zimbabwe is 18 years, and any marriage entered by a person under the
age of 18 is invalid. Consequently, it declared s 22(1) of the Marriage Act [Chapter 5:11]
unconstitutional in terms of s 78(1) of the Constitution and the section was struck down
as a result thereof.
iii. To address a gap in the law
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Thirdly, courts may issue temporary rules where necessity and/or legislative silence
threaten fundamental rights. In Zimbabwe, this has never been done, but in India, the
Indian Supreme Court, in the case of Vishaka v State of Rajasthan (1997) 6 SCC 241,
crafted workplace harassment guidelines pending parliamentary action. The court held
that the guidelines were to be treated as a declaration of law in accordance with Article
141 of the Constitution until the enactment of appropriate legislation. Similarly, in
Botswana, in the case of Attorney General v. Unity Dow 1991 BLR 233 (HC), a case that
struck down sexist citizenship laws, the High Court effectively inserted a rule allowing
children of Botswana women to obtain citizenship by descent just as children of
Botswana men could, thereby creating new law on the point. Although Zimbabwe has
not faced an identical situation, however, s 46 of the Constitution empowers courts to
draw on international law and principles to safeguard rights where statutory guidance
is lacking. It provides as follows:
“46. Interpretation of Chapter 4
(1) When interpreting this Chapter, a court, tribunal, forum or body—
(a)must give full effect to the rights and freedoms enshrined in this Chapter;
(b)must promote the values and principles that underlie a democratic society based on openness,
justice, human dignity, equality and freedom, and in particular, the values and principles set out
in section 3;
(c)must take into account international law and all treaties and conventions to which Zimbabwe is
a party;”
This encourages the courts to draw from international law. Despite these instances,
courts remain acutely aware of the separation of powers and exercise restraint. In the
case of Magaya v Magaya SC 210-98, in overturning the decision in Katekwe vs
Muchabaiwa 1984 (2) ZLR 112 (SC), the Court stressed that courts must proceed
cautiously in legal interpretation to avoid interfering with the legislature’s domain. It
remarked that:
“Further, the Courts do not have the capacity to make new law in a complex area of law
such as inheritance and succession․ Matters of reform should be left to the legislature․
The role of the Court is simply to uphold the actual and true intention and purport of
African customary law․”
Judicial law-making is justified only where necessary to prevent a denial of justice
or to enforce constitutional obligations. It must be narrowly tailored, provisional, and
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grounded in identifiable legal sources rather than policy preference. The South African
Constitutional Court has observed in S v Manamela 2000 (1) SACR 414 (CC), judicial
remedies are not the “final word,” as the democratic lawmaker remains free to legislate
further within constitutional bounds. Similarly, in National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs supra, the court held at p. 61 on para 76 that:
“[76] It should also be borne in mind that whether the remedy a court grants is one
striking down, wholly or in part; or reading into or extending the text, its choice is not
final. Legislatures are able, within constitutional limits, to amend the remedy, whether by
re-enacting equal benefits, further extending benefits, reducing them, amending them,
“fine-tuning” them or abolishing them. Thus, they can exercise final control over the
nature and extent of the benefits.”
Therefore, the democratic lawmaker can adjust the law afterwards within constitutional
bounds.
In addition, courts respect the legislature’s democratic legitimacy and policy-
making competence, particularly where complex social or budgetary choices are
involved. In Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), the
South African Court set constitutional baselines for access to medication without
prescribing a detailed policy demonstrating that courts can enforce rights robustly
while avoiding overreach.
Courts, therefore, can and do play a law-making role, but only in
constitutionally compelled circumstances to update the common law, remedy
unconstitutional statutes, or fill legal vacuums that threaten fundamental rights. This
role is exercised with caution, transparency, and deference to the legislature’s primary
authority. In Zimbabwe, judicial law-making functions are a necessary complement to
legislative power, ensuring that the law remains living, just and rooted in the spirit of
the Constitution while maintaining the delicate balance of the separation of powers.
The powers of courts in constitutional matters are, set in s175 of the Constitution as
follows,
“175. Powers of courts in constitutional matters
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(1) Where a court makes an order concerning the constitutional invalidity of any law or
any conduct of the President or Parliament, the order has no force unless it is confirmed
by the Constitutional Court.
(2) A court which makes an order of constitutional invalidity referred to in subsection (1)
may grant a temporary interdict or other temporary relief to a party, or may adjourn the
proceedings, pending a decision of the Constitutional Court on the validity of the law or
conduct concerned.
(3) Any person with a sufficient interest may appeal, or apply, directly to the
Constitutional Court to confirm or vary an order concerning constitutional validity by a
court in terms of subsection (1).
(4) If a constitutional matter arises in any proceedings before a court, the person
presiding over that court may and, if so requested by any party to the proceedings, must
refer the matter to the Constitutional Court unless he or she considers the request is
merely frivolous or vexatious.
(5) An Act of Parliament or rules of court must provide for the reference to the
Constitutional Court of an order concerning constitutional invalidity made in terms of
subsection (1) by a court other than the Constitutional Court.
(6) When deciding a constitutional matter within its jurisdiction a court may—
(a) declare that any law or conduct that is inconsistent with the Constitution is invalid to
the extent of the inconsistency;
(b) make any order that is just and equitable, including an order limiting the retrospective
effect of the declaration of invalidity and an order suspending conditionally or
unconditionally the declaration of invalidity for any period to allow the competent
authority to correct the defect.”
Mr Biti submitted that in terms of the remedies, should the court declare the
provisions unconstitutional, a ‘reading in’ should be employed. ‘Reading in’ is a judicial
remedy whereby the court will ‘read’ something into the meaning of a provision in
order to rescue a provision or a part of it. See C. Botha, Statutory Interpretation – (supra
@197). This may be through the addition of words or provisions to a statute to keep it
constitutional, as opposed to striking down the statute or a portion of it outright. When
a court finds that a statute violates the Constitution due to under-inclusiveness or
exclusion, it can remedy this by reading the omitted group or condition into the statute
to achieve compliance with the Constitution while preserving the overall statute.
While section 175 of the Constitution empowers courts to declare legislation
invalid to the extent of inconsistency with the Constitution, the text does not explicitly
mention ‘reading in,’. Courts though have an inherent authority to craft appropriate
remedies, and “just and equitable orders” when upholding fundamental rights. In
Mudzuru & Anor v Ministry of Justice, Legal & Parliamentary Affairs N.O. & Ors supra, the
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Court effectively read s 78(1) of the Constitution into the Marriage Act [Chapter 5:11], to
the effect that no person under 18 can found a family. The Court declared that the
Marriage Act must be understood as prohibiting any marriage of persons under the
age of 18. Although framed as an invalidation of the Marriage Act’s lower marriage
age, the result was to insert the Constitution’s 18-year age of majority. This shows the
Court ensuring that the statute aligns with the constitutional requirement by adding
the missing protection.
In comparison, s 172 of South Africa’s Constitution explicitly allows courts to make
“any order that is just and equitable,” which the South African Constitutional Court has
interpreted as permitting reading-in when appropriate. Since Zimbabwe’s Constitution
and jurisprudence do not expressly codify the remedy of reading in, the courts can
draw guidance from South African precedent given the shared constitutional
framework, similar rights-based provisions and the common Roman Dutch legal
heritage underlying both systems. In the South African case of National Coalition for
Gay and Lesbian Equality and Ors v The Minister of Home Affairs 1999 (3) SA 173 (C), held
that:
“[70] I accordingly conclude that reading in is, depending on all the circumstances, an
appropriate form of relief under section 38 of the Constitution and that “. . . whether a
court ‘reads in’ or ‘strikes out’ words from a challenged law, the focus of the court should
be on the appropriate remedy in the circumstances and not on the label used to arrive at
the result.” The real question is whether, in the circumstances of the present matter,
reading in would be just and equitable and an appropriate remedy.”
Similarly, the Supreme Court of Canada, under its constitutional supremacy clause, s
52 of the Constitution Act, 1982, has asserted that reading in is a legitimate exercise of
its power to strike down unconstitutional laws, being essentially an alternative way to
render the law constitutional. Notably, in Schachter v Canada [1992] 2 SCR. 679, the
Canadian Supreme Court set out a framework for choosing remedial techniques and
confirmed that reading in is a legitimate remedy akin to severance in appropriate
cases.
Courts will consider reading in when the following conditions are generally met:
i. The constitutional infirmity arises from an omission or exclusion, that is,
the statute is underinclusive, extending benefits or protections only to a
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certain class and leaving others unprotected without sufficient
justification;
ii. Adding words would correct the violation in a manner that minimally
alters the legislation and furthers the legislative purpose, rather than
detracting from it; and
iii. The court can fairly identify the precise words or category to be added so
that it is confident the result aligns with what the legislature would have
intended had it been aware of the constitutional requirement.
These considerations were established in National Coalition for Gay and Lesbian Equality
and Ors v The Minister of Home Affairs supra on p. 60 para 74-75 as follows:
“[74] The severance of words from a statutory provision and reading words into the
provision are closely related remedial powers of the Court. In deciding whether words
should be severed from a provision or whether words should be read into one, a court
pays careful attention first, to the need to ensure that the provision which results from
severance or reading words into a statute is consistent with the Constitution and its
fundamental values and secondly, that the result achieved would interfere with the laws
adopted by the legislature as little as possible…
… [75] In deciding to read words into a statute, a court should also bear in mind that it will
not be appropriate to read words in, unless in so doing a court can define with sufficient
precision how the statute ought to be extended in order to comply with the Constitution.
Moreover, when reading in (as when severing) a court should endeavour to be as faithful
as possible to the legislative scheme within the constraints of the Constitution. Even
where the remedy of reading in is otherwise justified, it ought not to be granted where it
would result in an unsupportable budgetary intrusion.”
Therefore, a court may validly “read in” missing provisions into a statute to remedy an
unconstitutional exclusion only were doing so is necessary to uphold constitutional
rights without encroaching upon the legislature’s policy-making function. The remedy
is governed by principles of constitutional restraint, proportionality, and institutional
competence.
Courts apply this remedy cautiously, ensuring that ‘reading in’ does not amount to
legislating new policy choices or imposing obligations that Parliament never
contemplated. A key consideration is the scope and practical impact of extending the
law to the excluded group. As emphasised in the National Coalition for Gay and Lesbian
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Equality v Minister of Home Affairs judgment, even where discrimination is evident, a
court should refrain from reading in if doing so would create significant budgetary or
administrative burdens that courts are ill-equipped to evaluate. Before invoking the
remedy, the court must consider additional factors such as the size and nature of the
group being aided, whether inclusion would fundamentally alter the legislative scheme
or merely extend it in line with its underlying purpose and whether the extension
would have substantial fiscal or policy implications better assessed by Parliament. In National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs supra, the court held that:
“Even where the remedy of reading in is otherwise justified, it ought not to be granted
where it would result in an unsupportable budgetary intrusion.101 In determining the
scope of the budgetary intrusion, it will be necessary to consider the relative size of the
group which the reading in would add to the group already enjoying the benefits. Where
reading in would, by expanding the group of persons protected, sustain a policy of long
standing or one that is constitutionally encouraged, it should be preferred to one
removing the protection completely.”
If the excluded group is small or the extension aligns with established
constitutional values or long-standing policy, ‘reading in’ is usually deemed
appropriate. However, where adding a group would transform the structure or
objectives of the law or require complex policy judgments, such as reallocating public
funds or creating new administrative systems, the court will instead declare the
provision invalid and suspend the declaration to give the legislature time to enact a
suitable amendment.
In the South African case of Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC),
the Maintenance of Surviving Spouses Act extended inheritance rights only to surviving
spouses in monogamous civil marriages, excluding widows from polygynous Muslim
marriages. The Court found this exclusion discriminatory on grounds of religion and
marital status. To cure the defect, it read in words to extend the Act’s protection to
surviving spouses in polygynous Muslim marriages. This targeted remedy ensured
substantive equality without overstepping judicial boundaries or altering the legislative
scheme’s core purpose.
Comparatively, the leading Canadian case of Vriend v Alberta [1998] 1 SCR 493
exemplifies this approach. Alberta’s human rights legislation listed several prohibited
grounds of discrimination but omitted “sexual orientation.” The omission effectively
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denied protection to LGBT individuals, amounting to unconstitutional exclusion under
the Canadian Charter’s equality clause. The Supreme Court of Canada held that
“reading in” sexual orientation was the appropriate remedy, as it directly addressed the
under-inclusiveness while preserving the broader statutory framework. Striking down
the entire Act, as suggested by the government, would have removed protections for
all other groups, a result clearly contrary to legislative purpose. The Court emphasised
that reading in was justified because it advanced the statute’s objective, which is
protecting individuals from discrimination, corrected a specific constitutional flaw and
minimised disruption to the law’s operation.
These cases illustrate that the remedy of ‘reading in’ is appropriate only under
specific, carefully defined conditions. It may be employed where the exclusion in a
statute violates a constitutional right, the remedy aligns with the statute’s underlying
purpose, and the addition to the law is narrow, precise, and necessary to achieve
equality. Importantly, the modification must not impose new policy choices, fiscal
obligations, or administrative burdens that are more properly the responsibility of the
legislature. In such circumstances, courts apply “reading in” to cure an unconstitutional
omission in a manner that preserves legislative intent, promotes constitutional
compliance, and ensures minimal interference with the democratic process. While
there is not yet an extensive record of reading-in remedies by Zimbabwe’s
Constitutional Court, the judiciary can draw on the above principles.
Where the application falters however is on relief sought. A fundamental
procedural defect arises from the fact that the relief sought by the applicants is not
framed with sufficient precision. In their founding affidavit, the applicants argue that s
4(a) is ultra vires the Constitution in that it excludes mental health as a permissible
ground for abortion. However, their relief is not directed at securing the inclusion of
mental health as a ground under the impugned section. Instead, they merely seek a
blanket declaration of invalidity of the section. Similarly, with respect to s 2(1), the
applicants seek that the section as a whole be declared unconstitutional, yet in their
founding affidavit, they argue that it is unconstitutional only as far as mental health is
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not a ground for termination. On that basis, there is no reason to strike down the
entire s 2 (1). The proper relief should have been to seek a reading of mental health
under s 2(1), or that Parliament be afforded an opportunity to amend the law rather
than a complete striking from the definition. Let me hasten to state that despite the
order sought not being drafted elegantly, I see no prejudice suffered by the
respondents especially since the court has already found that the impugned sections
are unconstitutional.
Whilst a reading in for both s4(a) and 2(1) of the Act would also be proper, I am
hesitant for the court to play the role of a lawmaker. As enunciated in various cases,
this power should be exercised with restraint lest it results in unintended
consequences. The respondents should be afforded an opportunity to properly frame
the law, taking into account the order of the court. I take guidance from the Kaweda
case (supra) and allow the respondents a time frame within which to affect the
amendments.
COSTS
This matter has raised critical issues relating to protection of rights in the Constitution.
Guided by s63(1) of the Constitutional Court Rules, 2025, I will not make any order as to
costs. See also Nkomo vs. Minister of Local Government, Rural and Urban Development
and ors, CC-06-16.
DISPOSITION
1. The definition of unlawful intercourse in s2(1) of the Termination of Pregnancy
Act [ Chapter 15:10] is declared unconstitutional only to the extent that it
excludes mental health and conduct proscribed in s106 of the Mental health Act
[Chapter 15:12] in the definition of unlawful intercourse.
2. Section 4(a) of the Termination of Pregnancy Act [Chapter 15:10] is declared
unconstitutional only to the extent that mental health as a ground for lawful
termination of pregnancy is excluded.
3. The orders of constitutional invalidity made in paras (2) and (3) above are hereby
suspended for 18 months from the date of this order to enable the respondents
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to amend the provisions in the Termination of Pregnancy Act as cited in
paragraphs one and two above to include mental health and conduct proscribed
in s106 of the Mental Health Act.
4. The above declarations of constitutional invalidity are suspended until such time
as the Constitutional Court has confirmed the same in terms of section 167(3) of
the Constitution of Zimbabwe.
5. The above order of constitutional invalidity is referred to the Constitutional
Court for confirmation in terms of section 175 (1) of the Constitution.
6. There shall be no order as to costs.
Tendai Biti Law, applicants’ legal practitioners
Civil Division of the Attorney-General’s Office, 1-3rd respondents’ legal practitioners
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