The State v Tendai Monalisa Ncube and Olivia Gwati

The two accused persons, Tendai Monalisa Ncube (aged 30) and Olivia Gwati (aged 37), were friends and neighbours in Mashava. The deceased, Rosemary Chakanaka (aged 25), was a student at Great Zimbabwe University who fell pregnant and wanted an illegal abortion. The deceased approached accused 2 who then involved accused 1, whose late mother had allegedly practiced illegal abortions. Both accused were motivated by a fee of US$50. Despite having no medical skills or training, they performed an illegal abortion on 5 December 2019 using an auger (muvururo) which was inserted into the deceased's uterus. The procedure went wrong and the deceased bled profusely. The accused initially attempted to take her to a clinic by scotch cart but abandoned this plan. The deceased died at their home. In a panic, the accused dumped her body in a disused mine. Five days later, on 10 December 2019, the body was discovered by a cattle herder. Post-mortem examination revealed the body was in an advanced state of decomposition, full of maggots, with grand distention of the abdomen, confirming pregnancy. The cause of death was indeterminate due to decomposition.

• Whether the accused were guilty of murder or culpable homicide
• The appropriate sentence for culpable homicide arising from an illegal abortion performed by unskilled persons
• Whether the Termination of Pregnancy Act [Cap 15:10] should be considered restrictive in light of constitutional rights to healthcare under s 76 of the Constitution
• The weight to be given to pre-trial incarceration in sentencing
• The degree of negligence in performing an illegal abortion without medical skills or knowledge

Each accused was sentenced to 2 years imprisonment, of which 1 year was suspended for 5 years on condition that they do not commit any offence involving unlawful killing or contravention of the Termination of Pregnancy Act [Cap 15:10] during that period, for which they would be sentenced to imprisonment without the option of a fine. The effective sentence for each accused was 1 year imprisonment.

Where persons without any medical skills or training perform an illegal abortion in a crude and dangerous manner (inserting an auger into the uterus), motivated by financial gain rather than any medical or moral purpose, and the patient dies as a result, a conviction for culpable homicide under s 49 of the Criminal Law (Codification and Reform) Act [Cap 9:23] is appropriate even where the specific cause of death cannot be determined due to decomposition. The degree of negligence in such circumstances is very high and warrants a custodial sentence, though this may be reduced to account for substantial pre-trial incarceration, guilty pleas, and the contribution of the deceased to her own death by seeking the illegal procedure. Non-custodial sentences would be inappropriate as they would send wrong and harmful signals regarding such conduct.

The court made obiter observations regarding the potential conflict between the restrictive provisions of the Termination of Pregnancy Act [Cap 15:10] and the constitutional right to healthcare under s 76 of the Constitution, and the question of whether abortions should be legalized in Zimbabwe as has been done in South Africa to prevent tragic deaths from 'back door abortions'. However, Mawadze J explicitly declined to rule on this issue, stating: 'In the absence of full argument and well-structured research on this subject which raises both moral and legal issues I decline to swallow this bait and engulf myself in such uncharted waters. This may be food to be digested on a different day or forum.' The judge noted that regardless of policy arguments, any abortion outside the ambit of the Termination of Pregnancy Act remains unlawful in Zimbabwe. The court also observed that sentencing is 'a complex exercise' requiring 'a delicate balance between competing factors' and is 'a function of judicial discretion which is exercised judiciously and not capriciously.' The court commented that the facts 'make sad reading and to some extent mirror the decay in our moral fabric.'

This case is significant in Zimbabwean criminal law as it addresses the serious consequences of illegal 'back door' abortions performed by unqualified persons, resulting in death. It demonstrates the courts' approach to sentencing in culpable homicide cases arising from illegal abortions, balancing the need for deterrence against mitigating factors including the victim's contribution to her own death and lengthy pre-trial incarceration. The case also touches on, but deliberately does not decide, the broader policy question of whether Zimbabwe's restrictive abortion laws under the Termination of Pregnancy Act [Cap 15:10] should be liberalized in light of constitutional healthcare rights, leaving this for proper consideration in an appropriate forum with full argument. The judgment emphasizes that profit-motivated illegal medical procedures performed without any skills or training will attract custodial sentences, particularly where followed by callous conduct in disposing of the victim's body.