The Legal Resources Foundation (LRF) v The Minister of Health and Child Care and Others

The Legal Resources Foundation (LRF), a private voluntary organisation promoting access to justice in Zimbabwe, brought a constitutional challenge to sections 35(1) and 35(2)(b) of the Public Health Act [Chapter 15:17]. The applicant relied on a June 2023 government-commissioned report showing alarming rates of adolescent pregnancies in Zimbabwe - 21% of antenatal care bookings between 2019-2022 were adolescents (persons aged 10-19 years). The impugned sections required "informed consent" for health services, defined as consent by a person with legal capacity, which excluded persons under 18 years. This meant adolescents could only access sexual and reproductive health (SRH) services through parental or guardian consent. The applicant argued this created barriers to accessing SRH services, as adolescents engaged in sexual activity clandestinely and social norms prevented open discussion with parents. The Ministry of Health and Child Care opposed, arguing the law protected children from sexual exploitation and that they assessed cases for SRH services on a case-by-case basis.

• Whether sections 35(1) and 35(2)(b) of the Public Health Act [Chapter 15:17] are inconsistent with the constitutional right to healthcare including reproductive healthcare under section 76 of the Constitution
• Whether the impugned sections violate the best interests of the child principle under section 81 of the Constitution
• Whether any limitation on constitutional rights is justifiable under section 86(2) of the Constitution
• Whether the court should exercise judicial restraint and defer to the legislature on matters of children's sexual and reproductive health rights

The application was dismissed with no order as to costs.

While sections 35(1) and 35(2)(b) of the Public Health Act requiring parental or guardian consent for healthcare services infringe the constitutional rights to healthcare (section 76) and the best interests of the child principle (section 81) by creating barriers to adolescent access to sexual and reproductive health services, such limitation is saved under section 86(2) of the Constitution as being fair, reasonable, necessary and justifiable in a democratic society. The limitation is justified because: (1) it forms part of a protective legal framework that criminalizes sexual activity with persons under 18 years; (2) it protects children from sexual exploitation; (3) removing the requirement would effectively convert adolescents into adults contrary to other protective legislation; and (4) a blanket removal without considering the evolving capacities of children of different ages (10-18 years) would be inappropriate. The doctrine of evolving capacities, while recognized in international law and some jurisdictions, requires legislative implementation through proper consultation rather than judicial decree.

The court made several non-binding observations: (1) It acknowledged the alarming prevalence of adolescent pregnancies in Zimbabwe as shown by the 2023 government report; (2) It noted that the Ministry of Health admitted to providing SRH services to adolescents without parental consent on a case-by-case basis, which undermines the respondent's position; (3) It discussed various theories of children's rights, noting the tension between protectionist and rights-based approaches; (4) It surveyed international approaches including the Gillick competence test (UK), three-tiered approach in Netherlands, and statutory provisions in South Africa, Lesotho and Namibia; (5) It recognized that the concept of evolving capacities of children is gaining traction and is recognized in the UN Convention on the Rights of the Child; (6) It observed that there is no universal consensus on the nature and extent of children's rights, with different jurisdictions adopting different approaches based on their social, religious and moral contexts; (7) The court noted this matter involves the ongoing Hart/Fuller debate on law and morals.

This case is significant in Zimbabwean constitutional jurisprudence as it addresses the tension between children's rights to sexual and reproductive healthcare and parental rights/state protection of children. It demonstrates the application of the section 86(2) limitations clause to save legislation that prima facie infringes constitutional rights. The judgment illustrates judicial restraint on socially sensitive matters involving children's sexuality and health, deferring to the legislature. It recognizes the emerging doctrine of 'evolving capacities' of children in international law while declining to apply it without legislative guidance. The case highlights the ongoing challenge of balancing adolescent autonomy, parental rights, and state protection in the context of high rates of teenage pregnancy. It affirms that while reproductive health rights are constitutionally protected, limitations can be justified where they serve protective purposes in a legal framework that criminalizes sexual activity with minors.