THE DEONTOLOGY.

(Study the law with Blessed Mupatsi).

Assisted by: Nompilo P. Nkomo.

Abortion: Pro-Choice; Pro-Nothing; Pro-Life.

In Zimbabwe in the late 19th century, through the promulgation of the Termination
of Pregnancy Act [Chapter 15:10] (hereinafter ‘the Act’) to deliberately terminate a
pregnancy was criminal except when necessary. It was permitted if the purpose was
to save the mother’s life, if the pregnancy caused serious threat of permanent
impairment of mother’s physical health (not mental health), serious threat that the
child will be born with physical or mental defect which will seriously handicap him or
her or /and the foetus is conceived as a result of unlawful intercourse which is
usually rape. This position was affirmed by section 60 ‘ unlawful termination of
pregnancy’ of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Therefore, in light of these provisions it is crystal that in our jurisdiction it is not
lawful to carry out an abortion on socio-economic grounds, however Zambia
prescribes to a different law with regards to issues of abortion. The subject raises
difficult questions of moral philosophy in which Zimbabweans hold conflicting views;
however, the essay will examine at length the constitutional ramifications of
abortion.

Historically, most jurisdictions have favoured the protection of life, at the expense of
individual freedom and physical integrity. Be that as it may, due to the numerous
freedom-based challenges to restrictive laws, systems of laws have begun to favour
freedom of choice. Abortion is one of the most controversial topics having no
grounds of agreement and thus the issue cannot merely be reduced to the question
of whether the foetus is a person neither can it be a simple question of being wrong
or right. D Meyerson, ‘Abortion: the Constitutional Issue’ (1999) 116 SALJ 50 at 59
submits that constitutional arguments about abortion are not exhausted by a finding
that the foetus does not have a right to life under the constitution, there are
additional considerations stemming from the value of human dignity relevant to the
validity of legislation regulating access to abortion. However, the paper will illustrate
that the restrictive approach taken by Zimbabwe fails to balance competing interests
of female reproductive rights and foetal interests.

Firstly, the Act defeats the purpose, aim, objective and constitutional goals achieved
by the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (henceforth referred
as ‘the Constitution’) by limiting constitutional rights relevant to female autonomy. C
Pickles, ‘Termination of Pregnancy Rights and Foetal Interests in Continued
Existence in South Africa: The Choice on Termination of Pregnancy Act 92 of 1996 ’
argues that these rights play an important role in society. M O'Sullivan ‘ Reproductive
Rights’ submits that these rights grouped together are called female reproductive
rights inclusive of the right to life, human dignity, equality and non-discrimination,
privacy, personal security, access to information and health care. The Constitution
entrenches, respects, protects and provides that ‘every person has inherent dignity’.
In S v Makwanyane 1995 (3) SA 391 (CC), Chaskalson P submits that;
‘The right to life and dignity are the most important of all human rights, and the source of
all other personal rights in the Bill of Rights. By committing ourselves to a society founded
on the recognition of human rights we are required to value these 2 rights above others.’

This position was re-iterated by O’Regan J in the Makwanyane case and in National
Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) at
28D-E. O'Sullivan argues that ‘ denying a woman the freedom to make and to act
upon a decision concerning reproduction treats her as a means to an end and strips
her of her dignity’. Thus, the Act in our jurisdiction treats women as a mere objects
subject to the will of others therefore, such an approach undermines the ability of
women to act autonomously hence violating their constitutional rights to dignity
promulgated in section 51 which states that ‘ every person has inherent dignity in
their private and public life, and the right to have that dignity respected and
protected’. One should bear in mind that as per section 86 (3) (b) the right to
human dignity is absolute which is to say it must neither be infringed or limited
under any circumstances.

Additionally, the right to personal security is an important innovation in the 2013

Constitution which is similar to section 12(2) of the South African Constitution (see B
Mupatsi, ‘The Vaccine Question’ https://lawzim.blogspot.com/2021/11/the-vaccine-
question.html). The Constitution makes an important recognition in section 52 (b)
that ‘every person has the right to bodily and psychological integrity, which includes
the right subject to any other provision of this Constitution, to make decisions
concerning reproduction’. This provision is of paramount significance because it
allows one to make decisions concerning their reproduction which is inclusive of
pregnancy termination. In the case of Christian Lawyers Association v Minister of
Health 2005 1 SA 509 (T) the court held that section 12(2) provides a woman with
the constitutional right to terminate her pregnancy. Therefore, with the similarities in
the two constitutional provisions one is drawn to conclude that the Act is
unconstitutional thus null and void. Moreover, the constitutional provision gives
women the power to enjoy and have control over their own bodies something that
society has deprived them for ages. Therefore, with regards to abortion women are
in the best position to make a decision and thus, the state must provide the right to
choose to terminate pregnancy and the means to do so safely.

Furthermore, sentiments raised by colleagues speak to the effect that the Act
infringes section 57 of the constitution the right to privacy, which is translated to
mean to be left alone without interference from the state. It would be unjust to
examine this right without discussing the landmark American decision of Roe v Wade
410 US 113 (1975), which successfully challenged the law criminalising abortion on
privacy grounds. In Roe v Wade the US Supreme Court held that there must be a
balance reached between a woman's right to privacy and the state's interest in
potential human life. However, the restriction placed by the state upon women must
not be burdensome, in casu the Act is a classic example of burdensome restrictions.
The writer concurs to the observations made in Planned Parenthood of Southern
Pennsylvania v Casey 505 US 833 (1992), wherein it was found that the state has an
interest in foetal life throughout the pregnancy. Having said that, the writer is of the
view that the state must be able to balance interests of the unborn child and the
constitutional rights of a pregnant woman, women must be afforded the freedom to
choose abortion and thus the decision must be a personally protected choice.

The inclusion of socio-economic rights as fully justiciable rights is an important

component of the Constitution, section 76 (1) provides that ‘ every citizen and
permanent resident of Zimbabwe has the right to have access to basic health-care
services, including reproductive health-care services.’ However, section 76 (4) states
that ‘the State must take reasonable legislative and other measures, within the limits
of the resources available to it, to achieve the progressive realisation of the rights
set out in this section .’ It is important to note that the obligation imposed on the
state in this context is subject to the availability of resources. Reproductive health is
inclusive of safe sexual transactions and safe pregnancy progression referring to
Planned Parenthood of Southern Pennsylvania v Casey as authority. O'Sullivan
submits that access to safe termination services contributes to reproductive health
through the reduction of maternal morbidity and mortality.

Assuming, the Act is amended to allow abortion on socio-economic grounds in

Zimbabwe there is need for the State to uphold section 62 the right to access
information. This right is crucial especially when one is to make an informed decision
with regards to their reproductive health. O'Sullivan argues that the lack of access to
information concerning reproductive health will prevent women from exercising their
right to reproductive decision making and will ultimately limit the control women
have over their bodies.

At this stage, one must consider submissions made by Devlin in the Hart-Devlin
debate. Devlin appealed to the idea of society's ‘moral fabric’ he argued that society
is held together by shared morality and the law must respect and reinforce those
moral norms in order to keep social order from unravelling, the notion of shared
morality is necessary for the survival of a society;

‘Societies disintegrate from within more frequently than they are broken up by
external pressures. There is disintegration when no common morality is observed
and history shows that the loosening of moral bonds is often the first stage of
 disintegration, so that society is justified in taking the same steps to preserve its
moral code as it does to preserve its government... the suppression of vice is as
much the law's business as the suppression of subversive activities’ .
However, the writer respectfully disagrees with the concept of a moral fabric as
submitted by Devlin in that morals change with time and the change does not
disintegrate society. Moreso, moral laws lead to uncertainty in the legal framework.
In RH v DE 2014 6 SA 436 (SCA) the court concluded ‘that in the light of the
changing mores of our society, (emphasis) the delictual action based on adultery…
has become outdated and can no longer be sustained; that the time for its abolition
has come.’ Furthermore, this position was cemented in the case of  Zimnat Insurance
Company Limited v Chawanda 1990 (2) ZLR 143 to advocate that morals in society
are subject to change, Gubbay ACJ as he then stated that, ‘…law in a developing
country cannot afford to remain static…it must adapt itself to fluid economic and
social norms as and values and to altering views of justice .’ Into the bargain, the
famous case of Njodzi v Matione HH 37-16 is also evidence that our courts are of the
belief that morals do change as illustrated by Mwayera J”… the bonis mores or legal
convictions of our society have not changed (emphasis) so much that …’, the choice
of the words have not changed is an admission that morals in society are susceptible
to change.

Conclusively, the restrictive approach taken by Zimbabwe fails to balance the

conflicting interests of female reproductive rights and foetal interests. There is need
to take a liberal approach to allow abortion to be done on socio-economic grounds,
this position has been taken in other jurisdiction such as Zambia and South Africa
and thus it is prudent that Zimbabwe adopts the progressive laws from these
jurisdictions. The writers submits that during the first 10 weeks of pregnancy,
concerned women must be able to have safe abortion without the rigid requirement
provided in the Act of having to consult and seek written consent from a medical
practitioner. In summation, the moral question on abortion depends on individual
religious beliefs, moral beliefs, background and socio-cultural attitudes among other
issues.