Sinokubonga Nkala
Robin Muchetu, Senior Reporter
THE Termination of Pregnancy Act (TOP) stands as one of the crucial pieces of legislation designed to protect the rights of sexual abuse victims.
However, its effectiveness is undermined by a general lack of public awareness regarding its principles and significance.
To truly empower citizens, particularly in rural communities, there is an urgent need for campaigns that educate them about this law and its practical applications — especially in cases of unwanted pregnancies resulting from abuse or those that pose a threat to the mother’s life.
While calls for amendments to the act are growing louder, with many labelling it as “archaic” and misaligned with the needs of modern women and girls, it is equally vital to ensure communities understand the law’s existence and provisions.
Enacted in 1977, the Termination of Pregnancy Act permits abortion only under limited circumstances and requires it to be performed by a certified medical practitioner authorized by a court order.
One case in point is the case of the Tsholotsho girl who gave birth at the fragile age of nine years in 2022 via a Caesarian section.
Both mother and father of the girl were unaware of the act or its provisions which could have come in handy as she fell pregnant through inappropriate sex with a boy with a close degree of relationship.
The Tsholotsho girl, now 11, shocked the world when it came to light that she was pregnant in August 2022. While Tsholotsho District Hospital confirmed the pregnancy when it was seven months old, the girl had stopped menstruating much earlier.
In an interview with the father of the girl minor last week, he said he was unaware of the existence of the TOP.
“I have never heard of the Termination of Pregnancy Act before or how it could have helped us. The challenge is that we live in the rural areas and such information never reaches us. I am sure those in the city with access to more media know about this act. Had we known, we surely could have approached relevant authorities when it was still early in the pregnancy and terminated it,” he said.
He said there is a huge information gap in terms of some pieces of legislation that are available for the benefit of the general public.
“We suffer because we do not know the law and how it benefits us, it is not surprising that if you ask people around rural communities, they do not know any of these laws that can protect their children. We visited the hospital to find out the condition of the child several times, no one realised she was pregnant until it was seven months later. At this point I realise she could not have been assisted as the time permissible had lapsed,” he said.
The parents of the then nine-year-old visited a local clinic with the minor in 2020 when she was seven years old and menstruating and were informed that it was normal.
Another visit in April 2021 was when she had stopped menstruating but was beginning to show signs of pregnancy which were not taken seriously. A third visit to the hospital in August with an unmistakable huge belly, was the confirmation of the pregnancy.
The child born by the Tsholotsho girl found a safe haven where she is being taken care of by the State and turned two on 14 November this year.
A specialist gynaecologist who chose not to be named for professional reasons said a misdiagnosis from the health centre greatly affected the fate of the then nine-year-old girl who could have been assisted earlier before the 22 weeks that the law allows termination had lapsed.
“The child’s case was mishandled from the health care centre when they went there to consult when she stopped menstruating. It was evident that she was pregnant but no one cared to investigate further and even perform a pregnancy test when the menstruation stopped.
When a patient presents with a history of menstruation for the past two years and then it suddenly stops, the procedure is to rule out pregnancy first which was supposed to have been done by the health workers in Tsholotsho. However, no one did that and the child was sent home and the pregnancy continued to grow,” said the doctor.
The gynaecologist said Standard Operating Procedures were ignored from the health centre which cost the child an opportunity to have a safe abortion.
“The Tsholotsho girl was a perfect candidate for a safe and legal abortion performed in a medical setting according to Zimbabwean laws because she was a victim of unlawful sex but the personnel on the ground failed to conduct a simple pregnancy test.
If for some reason they were incapacitated to do the test, they could have escalated the matter and referred her to Mpilo Central Hospital for further diagnostics and also an explanation as to the sudden stop of the menstruation than to send the child home with no assistance,” he said.
Termination of Pregnancy is permissible only if it is performed by a certified medical practitioner and authorised by a court order.
Under the Act, termination is permissible if the pregnancy endangers the life of the woman and could result in permanent impairment to her physical health.
An abortion may also be authorised when there is a risk that the child will be born with severe physical or mental defects. The physical or mental defect must be of such a nature that the child to be born will permanently and seriously be handicapped.
The third ground is when there is a reasonable possibility that the pregnancy was conceived as a result of unlawful intercourse such as rape, other than rape within a marriage, and sexual intercourse within a prohibited degree of relationship (incest).
The gynaecologist added that had the health personnel detected the pregnancy earlier, the termination could have been suggested as an option.
“Either way she was eligible for termination even if it turned out that she was raped, she also was eligible on the basis of the close relationship she has with the accused person so there was no way she was going to be denied that opportunity. This on top of her tender age, she was just nine, with an underdeveloped body and carrying that pregnancy was high risk on its own and definitely, some serious considerations were going to be made to have a safe abortion,” he said.
Executive Director of Women’s Action Group Mrs Edinah Masiyiwa said issues of rape are a major challenge as women generally report late when they are raped and most of the time the pregnancy will be beyond the 22 weeks where abortion is allowed.
She said another major setback that hinders the successful legal termination of pregnancies in Zimbabwe are the administrative procedures to allow a termination.
“In the case of rape one has to report to the police, then they go to the courts where they are issued with a certificate to terminate. The observation is that this process takes too long for women and girls who are in remote areas where there are no services readily available.
There have been challenges whereby the certificate to terminate is issued after the permissible 22 weeks. In some cases, they may have challenges of transport to reach the courts or health centres for examinations or the distances may be too long for the victim to reach as often as they are needed.
So, we are proposing that this law be reviewed to respond to the needs of women and girls in Zimbabwe who need abortion services,” she said.
She said a review of the Termination of Pregnancies Act will ensure that barriers to access are addressed in their entirety as the law is now archaic and does not meet the needs of the contemporary women and girls.
Women and Law Southern Africa (WLSA) recently made a High Court application challenging the law where they highlighted that: “Allowing children to have pregnancies without an option of safe legal abortion also amounts to torture, cruel and degrading treatment in breach of Section 53 of the Constitution of Zimbabwe.
Teenage pregnancies and failure to allow the legal safe abortions, is a breach of the right to human dignity protected under section 51 of the Constitution of Zimbabwe.”
They highlighted that the Chief Justice (Luke Malaba) stated that children fall into the category of weak vulnerable persons in society.
They are persons who have no capacity to approach a court on their own seeking appropriate relief for the redress of legal injury they would have suffered.
“The reasons for their incapacity are disability arising from minority, poverty and socially and economically disadvantaged positions. The law recognizes the interests of such vulnerable persons in society as constituting public interest.
Specifically, section 81(1)(e) protects children from sexual exploitation including any form of sex with children. Clearly, teenage pregnancies are a form of abuse crying out for protection. Availing children the right to abort is a form of protecting children consistent with the Constitution,” he noted.
