Youth Voices

Abortion Laws in Africa

By Kawsu Fatoumatta Csay Sillah

The picture shows an unborn baby at 10 weeks after conception: recognizably a member of the human family.

Unsafe abortion is a preventable cause of maternal mortality and morbidity, even for low-resource countries [1]. However, the latest World Health Organization’s global and regional estimates of the incidence of maternal mortality due to unsafe abortion underscore that, for women in the Global South especially, unsafe abortion remains a persistent danger [2]. On the one hand, the estimates show a welcome decline in the number of deaths from unsafe abortions globally, from 69 000 in 1990 and 56 000 in 2003 to 47 000 in 2008. On the other hand, as a proportion of global maternal mortality, unsafe abortion-related deaths have hardly declined, remaining close to13%. Furthermore, from a regional perspective, the estimates show growing disparities, with Africa lagging behind. The African region is overrepresented in the numbers of unsafe abortions as well as Unsafe-abortion-related mortality, accounting for 28% of the global incidence of unsafe abortions, and close to 62% of unsafe abortion related mortality (29 000 women). Such a disproportionate burden of unsafe abortion partly explains why Sub-Saharan Africa, especially, is least positioned to meet Millennium Development Goal (MDG) 5A to reduce maternal mortality by three-quarters by 2015 [3].

Of course, the causes of unsafe abortion are multilayered, and can only be adequately addressed by a holistic approach to sexual and reproductive health that goes beyond discretely addressing abortion to include assuring women universal access to modern contraception. At the same time, creating an enabling environment for the availability and accessibility of safe abortion services is absolutely critical.

When faced with an unwanted pregnancy, women are likely to have recourse to abortion regardless of whether this is permitted by the law [4]. Abortion law is an important gateway, with an officially sanctioned capacity to enable or disable safe reproductive choices. The critical role that abortion law plays is underscored by evidence showing that the historical criminalization of abortion has served as a major incentive for unsafe, illegal abortions. On the African continent, the experiences of Tunisia [5] and South Africa [6] adequately demonstrate that when abortion law is liberalized, implemented, and accompanied by equitable access to abortion services, the incentives for unsafe, illegal abortion and the attendant consequences are drastically curtailed.

The well-established connection between highly restrictive abortion law and unsafe abortion is an integral part of the formulation of strategies to prevent women from being rendered ill, disabled, or killed by unsafe abortion. It is the reason why a major component of global public health and human rights advocacy for promoting women’s reproductive health and preventing unsafe-abortion-related mortality and morbidity has revolved around broadening the grounds for abortion with the aim of creating an enabling legal environment. However, with the global trend toward the liberalization of abortion [7], human rights advocacy needs to chart a broader strategic path. Without abandoning the goal of the liberalization of abortion or, ultimately, its decriminalization [8], while criminalization remains, advocacy needs to take into cognizance a changing legal environment. In particular, it needs to take into account two juridical developments of increasing importance.

Firstly, advocacy needs to recognize that the abortion legal landscape has not remained static, but is continually changing. Partly on account of the success of advocacy, many jurisdictions have now liberalized their abortion laws and broadened the grounds for abortion. Consequently, insofar as legal barriers are concerned, it is no longer highly restrictive abortion grounds alone that necessarily constitute the major barrier. Rather, it is the lack of effective implementation of exceptions to the criminalization of abortion permitted under domestic law that, increasingly, is apt to come to the fore as the more significant barrier. A second development to take into account is that new human rights opportunities are emerging for rendering states accountable for failure to implement safe lawful abortion under domestic law, particularly from the jurisprudence of the European Court of Human Rights and United Nations treaty bodies. Abortion advocacy in a region such as Africa, where unsafe abortion clearly remains a major public health and human rights challenge, could do well to appropriate and domesticate the emerging jurisprudence as adjuncts to the establishment of an enabling legal environment.


The changing landscape of African abortion laws

Comparatively, Africa remains a region with one of the most restrictive laws, alongside Latin America. An overwhelming majority of the region’s domestic laws do not explicitly recognize socioeconomic circumstances or request as grounds for abortion. Abortions laws of Cape Verde, Ethiopia, South Africa, Tunisia, and Zambia are the exceptions in this regard [9]. At the same time, at both domestic and regional levels, Africa exemplifies a changing abortion legal landscape, with a discernible trend toward liberalization [10]. To a large extent, Africa exemplifies not so much failure to liberalize abortion law, but a region where there has been manifest failure by the preponderance of states to meaningfully implement the exceptions to the criminalization of abortion that they themselves have granted through domestic reforms. The African region has experienced abortion law reforms at both domestic and regional levels which, if effectively implemented in an environment where services are available and accessible, would certainly make a decisive advance in the reproductive health of women.

African abortion laws were initially shaped by the crime and punishment model for regulating abortion that was transplanted by the European colonizing countries to the region. At the time of colonization, the colonial state sought to reflect the rigors of abortion law in the colonizing countries which equated abortion with mortal sin. Consequently, abortion was rendered a most serious crime. On the eve of independence, saving the life of the pregnant woman, which became known as the therapeutic exception was, expressly or implicitly, the only permitted exception to the criminalization of abortion in Anglophone Africa, for example [11]. But even with the therapeutic exception, rarely was official guidance ever given as to how the exception was to be applied in practice. In this regard, the most that could be said, by way of guidance, was the ruling by an English court in the 1938 Bourne case [12]. The ruling in Bourne equated threat to the life of the pregnant women with a serious threat to her physical or mental health, thus, judicially broadening the compass of therapeutic exception.

The guiding effect of Bourne was, however, limited. It could only constitute a persuasive ruling in countries following the British common law tradition, which effectively meant only British or former British colonies. Furthermore, the efficacy of the Bourne ruling was undermined by the fact that, even in the jurisdictions in which it was formally received by colonial courts such as in Nigeria [13] and Kenya [14], states did not take concrete steps, such as the adoption of legislation or regulations, to implement the ruling, leaving not just women seeking abortion, but also healthcare professionals with competence to render abortion services, ignorant of or unsure about the law.

In the post-independence era, while progress in reforming received abortion laws has been woefully slow, especially in contrast to gigantic progress made in the former colonizing countries, nonetheless, the last two decades or more have been a period of reform. An increasing number of African countries have instituted reforms that broaden abortion grounds beyond saving the life of the pregnant woman. Significantly, over and above recognizing saving the life of the woman as a ground for lawful abortion, close to half of the African Union’s 54 member states now permit abortion where continuance with pregnancy threatens the health of the woman [15]. Rape, incest, and danger to fetal health or life, are also increasingly recognized as grounds for abortion.

But notwithstanding a discernible emerging regional liberalizing trend, domestic law reforms in the African region have, on the whole, not translated into tangible access to safe abortion services. This is not only because, for the majority of women, abortion services are frequently unavailable or inaccessible because of factors such distance, cost of services, or ignorance about location of facilities. It is also because of the persistence of administrative inaccessibility due to states introducing legal reforms that, on the one hand, broaden the grounds, but on the other hand, fail to implement the grounds in ways that are sufficiently transparent and effective to allow women seeking abortion to become aware of their legal rights, and to know how to realize them so that the legality of abortion is much more than a theoretical abstract. Equally, abortion law reforms have not impacted positively because of failure by state authorities, such as Ministries of Justice or Ministries of Health, to acquaint healthcare professionals, who have the competence and responsibility to provide abortion services, with the legality of abortion and the scope of their legal duties, through, for example, the adoption of implementing protocols or guidelines.

Even in countries that, in recent years, have used the constitution to liberalize abortion grounds, Swaziland [16] and Kenya [17] being the prime cases, abortion law reform has not been accompanied by implementation. Article 26(4) of the Kenyan Constitution, for example, permits abortion when it is needed in an emergency, when the life or health of pregnant women is at risk, or if permitted by any other written law. Concern about the lack of implementation of Article 26(4) recently prompted the Kenya National Commission of Human Rights to make several recommendations designed to operationalize abortion rights and services, including recommending that the Ministry of Health develop and implement standards and guidelines for the provision of abortion services, promote public awareness of the legality of abortion under the Constitution, and train and educate healthcare professionals about their duties and rights in respect of the provisions of legally mandated safe abortion services [18] (Para. 4.6.2). Countries such as Ethiopia that have developed and implemented guidelines [19] to complement abortion law reforms, which the country introduced in 2005 when it amended its penal code to broaden the grounds for abortion [20], remain exceptions to the rule on the continent.

A similar picture of liberalization of substantive abortion law that is not accompanied by concrete implementation also obtains at the African regional level. In 2003, liberalization of abortion law in the region received a significant boost under the human rights system of the African Charter on Human and Peoples’ Rights (African Charter) [21], when the African Union adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Women’s Protocol) [22]. The Women’s Protocol became the first international treaty ever to expressly recognize a right to abortion. Article 14(2) (c) of the Women’s Protocol recognizes not just a threat to the life of the pregnant woman as a ground for abortion. Though it falls short of recognizing socioeconomic grounds and mere request as grounds for abortion, the Protocol also recognizes a mere threat to the health of the pregnant woman, threat to the life of the fetus, rape, incest, and sexual assault as alternative grounds for abortion. As a ground for abortion, threat to the health of the pregnant woman can be particularly enabling when health is understood in a holistic sense as envisaged by the Constitution of the WHO.

Article 14 of the Women’s Protocol frames abortion as part of the states’ duties to respect, protect, and fulfill sexual and reproductive health. Though the Protocol has a capacity to effect a paradigm shift in the regulation of abortion by supplanting the historical crime and punishment model with a reproductive health model that priorities the health and human rights of women [23], its abortion provisions have remained largely unoperationalized, even in ratifying countries. The main adjudicatory organs of the African Charter system, namely the African Commission on Human and Peoples’ Rights (African Commission) and the African Court on Human and Peoples’ Rights (African Court) have, thus far, not played an active role in giving life to the Protocol’s abortion provisions. Despite unsafe abortion being evidently a persistent and significant contributor toward maternal mortality, in Sub-Saharan Africa especially, the African Commission, which has a mandate to promote and protect human rights under the African Charter-based treaties, and the African Court [24], which has both contentious and advisory jurisdiction in respect of the African Charter instruments including the Women’s Protocol, have yet to issue guidance on the interpretation and application of the Protocol’s abortion provisions.

Under the African Charter system, the task of promoting the implementation of the abortion provisions of the Protocol, and of domestic abortions laws more generally, need not be left to the African Commission and the African Court. The office of Special Rapporteur on the Rights of Women in Africa, which was created by the African Commission to assist the Commission in the promotion and protection of the rights of women [25], is well placed to play a critical and interventionist role. It can guide the Commission to engage more pointedly with African governments in the sphere of sexual and reproductive health, including promoting awareness about the duty of the state to implement its own abortion laws, and ensuring that reports that are submitted to the Commission, to report on state compliance with treaty obligations, also address the steps taken by the state to implement its own abortions laws.



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