Abortion Litigation in Africa
Litigating abortion rights on the continent is fraught with difficulty with restrictive legal regimes, political hurdles and hostile social attitudes which would forestall the implementation of any court decisions; the absence of indigenous jurisprudence and failures by judges and lawyers as well as the preference by stakeholders to rely on non-adversarial means to realize progress on what is a hot-button political and socio-cultural issue. This is indeed the reason for the absence of abortion litigation in the Litigating Reproductive Justice in Africa (LIRA) Programme focus countries. Excluding criminal prosecutions and undecided litigation that are a preserve of the state and which rarely if ever are based on human rights, there are only four decided constitutional or civil cases in the six LIRA Programme focus countries.
Overview of Civil Cases
In Uganda, three organizations, including the Centre for Health, Human Rights and Development (CEHURD) have filed separate petitions variously challenging the government’s failure to legislate the circumstances under which legal abortion is permitted. Uganda’s 1995 Constitution provides that no person has the right to terminate the life of an unborn child except as may be authorized by law. Since 1995, the government has not enacted the necessary legislation required by the constitutional injunction and has been consequently sued. CEHURD’s petition challenges the government’s failure to enact a law to provide for the circumstances under which abortion is permitted. The petition argues that the government’s omission to legislate the circumstances under which abortion is permissible violates the 1995 Constitution. It seeks a declaration that the omission of the state to formulate and pass a law regulating termination of pregnancy contravenes the Constitution. The petitioners seek orders compelling the executive and the parliament to formulate and pass a law regulating the termination of pregnancy.
The Penal Code of Malawi in sections 149, 150, and 151 prohibit any form of abortion including aiding and trading in materials for abortion with a maximum of 14 yeas imprisonment for the service provider, 7 years for the women and 3 years for the trader. Section 243 creates an exception to the restriction if the woman’s life is in danger. Malawi has enacted the Gender Equality Act and an SRHR policy that provides for equal access to SRHR services including the right to control fertility, access to adequate health care including reproductive healthcare.
The political class in Malawi are resolutely opposed to any changes in the legislation on abortion in the country. 5 80 percent of the MPs surveyed in one study said they would vote against tabling the Bill. President Chakwera, himself a pastor, remained ostensibly neutral and let parliament decide whether to debate the hotly contested Bill. Yet the sponsors were bullish and confident: ‘Our committee has done massive sensitizing and consultation meetings with fellow legislators, members of the communities, church leaders, traditional leaders who were failing to understand this Bill. I have full confidence that once the Bill is presented in Parliament, it will receive massive support and the legislators will allow it to be discussed.’ 6 Traditional leaders and religious leaders had also registered their support for the Bill (Paramount Chief Kawinga of Machinga and Chair of the Islamic Commission for Justice and Freedom Shaibu Abdul Rahman Ajasie). Despite this public show of support, the Bill was not tabled due to opoosition from other legislators. Malawi CSO actors and lawyers nonetheless filed a suit to get the country’s high court to pronounce itself the legality of abortion in the country as discussed below.
Other than criminal prosecutions, there is no reported case of abortion-related litigation in Nigeria from the available literature. Abortion in Nigeria is illegal and carries a heavy jail sentence – up to 14 years imprisonment – unless it is performed to save the life of a pregnant woman. Still, many clandestine abortions continue to be carried out in the country often with dire consequences for the lives and health of the women involved. Statistics indicate that over 1,000,000 abortions occur in the country annually, representing about 33 abortions per 1,000 women of child-bearing age. Illegal abortion is responsible for about 11 percent of maternal deaths in Nigeria and 50 percent of such deaths involve adolescents and young women.
Yet abortion is criminal in Nigeria, prohibited by the Criminal Code in southern states and by the Penal Code in northern states. The difference between the two statutes is that the Criminal Code applies to anyone ‘acting with the intent of procuring the miscarriage’ of a woman regardless of whether she is pregnant (“whether or not she is with child”) while the Penal Code applies to those cases where a woman is in fact pregnant (“with child”). The country has not had any litigation challenging the constitutionality, legality, or propriety of its abortion restrictions. 9 The country has had a handful of criminal cases that have been prosecuted using based on the above provisions. These criminal cases are obviously unable to interpret or clarify reproductive or abortion rights. The question, therefore, becomes whether the political and socio-cultural environment is likely to be receptive to constitutional or other legal challenges to the country’s abortion restrictions.
According to the New Yorker, Conservative social norms, religion, and the value placed on large families in Senegal and other West African countries have resulted in broad public support for strict legal restrictions on abortion, many of which date back to laws imposed on the region by France and other colonial powers in the nineteenth and twentieth centuries. In Senegal, abortion is illegal in all cases except to save the woman’s life; approval for inducing “therapeutic abortions” must come from two doctors, one of whom is independently assigned by the courts. Giving advice on where or how to access abortion is a criminal offense.
Article 305 of the country’s criminal code prohibits abortion. Any woman who had an abortion or tried to get an abortion may be sentenced to six months to two years in jail, in addition to paying a fine. Article 305 also punishes any person who assists in an abortion with a jail term of up to ten years plus and a fine. This specifically includes doctors, pharmacists, herbalists, and sellers of surgical instruments, and requires that the professional licenses of guilty individuals be suspended. This leads to a situation where doctors either refuse to provide care and treatment for women who have attempted to abort in non-medical settings for fear of professional reprisals. 16 It is an offense to persuade a woman to get an abortion even if the abortion does not happen. This implicates those who speak in public, post signs and distribute material encouraging safe termination of pregnancies.
Before the promulgation of the 2010 Constitution, abortion in Kenya remained largely criminalised and stigmatised, with women being imprisoned and medical providers who offered safe abortion services prosecuted. The 2010 Constitution permits safe abortion on a wide array of circumstances, and is complemented by county laws that are increasingly emerging to allow for safe abortion. The Constitutional provision in Article 26(4) which prohibits abortion ‘unless there is need for emergency treatment or the life or health of the mother is in danger or if permitted by any other written law’ is operationalised by provisions of the 2017 Health Act.
The decision in FIDA – Kenya & Ors v The Attorney General & Ors 24 is illustrative. Between 2013-2014, the Kenyan Director of Medical Services withdrew the 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya and the National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies, respectively. In June 2018, JMM, who had barely just turned 18, died due to complications arising from a botched back-alley abortion in an attempt to terminate a pregnancy resulting from rape. She had sought to terminate the procedure. Activists and JMM’s mother petitioned the High Court of Kenya, linking the withdrawal of the guidelines to JMM’s death which they argued was a violation of her right to life and health. The petitioners argued that the withdrawal of the guidelines deprived individuals, like JMM, of the necessary information required.
Abortion is legally permitted in Zimbabwe but only under limited circumstances, including if the pregnant woman’s life is in danger or in cases of rape, incest or fetal impairment under the country’s Termination of Pregnancy Act. In practice, it is extremely difficult to obtain a legal abortion; as a result, most abortions are clandestine and potentially unsafe. These challenges were evident in Mildred Mapingure v Minister of Home Affairs. In that case, the appellant, a survivor of rape and sexual assault, attempted unsuccessfully, to first obtain emergency contraception when she realised there was a pregnancy which was a possible result of her assault. When the window within which she could obtain emergency contraception closed, she quickly sought to terminate the pregnancy. In all her attempts, she was timeous albeit misguided by the police where she reported the rape and the hospital where she tried to access SRHR services. She only did obtain a pregnancy termination certificate five months after being raped. By then, the medical professionals advised her that terminating the pregnancy would be too risky. She was compelled to carry the baby to term even though she had immediately requested emergency contraception after reporting her assault to the police, which was denied. She also repeatedly sought abortion services after discovering that she was pregnant a month after being assaulted.
She sued the respondent, who was vicariously liable for the conduct of the police officers who refused to process her application for the termination certificate for damages claiming they were negligent in executing their duties. She sought damages for the pain and suffering she endured for the duration of the pregnancy and costs for the child’s maintenance until it reached majority age. The court granted her damages for pain and suffering arising from the failure to prevent the pregnancy, finding that the police officers who refused to help her process a termination certificate were negligent in their duties. She was denied damages for the cost of maintaining the child because the court judged her responsible for not knowing what to do, implying that it was her fault for trusting what the authorities told her. Insufficient attention was paid to human rights norms and jurisprudence relevant to the matter. This and the previous Kenyan case highlight the importance of State interventions in SRHR. In both cases, the victims were ignorant of the law regarding abortion and post-abortion care and paid dearly for it. Had the State discharged its duty to inform the populace of the existence of these services and the procedures for accessing them, perhaps both cases would have gone very differently.