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Exposing hypocrisy on abortion law in Malawi

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DENOUNCES HYPOCRISY—Inkosi Mabulabo

Despite adopting a progressive legal and policy framework informed by internationally recognised human rights norms and values, Malawi has not complied with the obligation to explain its abortion law in accordance with legal and human rights standards. As CHISALE MHANGO & GODFREY KANGAUDE write, it is time to stop the hypocrisy and walk the talk.

Unsafe abortion continues to be a major public health challenge in Malawi. The first nationwide cross-sectional survey on the magnitude of unsafe abortion found that, in 2009, an estimated 67,300 abortions occurred and 18,700 women were treated in health facilities for abortion-related complications. Of these women, 15,000 needed uterine evacuation procedures requiring the government to spend an estimated K229 million.

A follow-up study in 2015 established that 141m000 women induced abortion, giving an abortion rate of 38 per 1,000 women of reproductive age. 53,600 women were treated for complications in 2015, thereby significantly increasing the cost of care since 2009. Abortion-related complications contribute to up to 18 percent of the maternal mortality ratio in Malawi.

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In its report on the review of the abortion law currently in force, the Malawi Law Commission (MLC) acknowledged that restrictive abortion law contributes to the problems associated with unsafe abortion— including serious complications such as loss of the uterus, permanent disability and death— because it drives women and girls to seek clandestine abortions from unskilled providers.

MLC has proposed a more liberal law to provide for expanded access to safe abortion. Arguably, it is also better aligned to internationally recognised human rights norms. MLC’s proposal is to be discussed in Parliament at an unknown date.

The current law deters access to abortion and makes an exception only when the performance of an abortion is necessary to preserve the life of the pregnant girl or woman.

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However, despite abortion being legally available within these limited circumstances, Malawi has never explained its exception from the legal prohibition, so that abortion is not meaningfully available for girls and women who qualify under the exception.

Malawi’s provisions regulating access to abortion, received through the 1930 colonial Penal Code, are drafted in a manner that is not immediately transparent and do not offer precise guidance as to what constitutes legal abortion.

Furthermore, the language of the provisions reflects the medical knowledge of the 1800s in Europe and is out of touch with modern medical standards.

However, this should not prevent Malawi from translating abortion provisions into clear terms and implementing them in accordance with current medical standards.

Since adopting a democratic constitution in 1995, Malawi has progressively developed an enabling legal and policy framework that ought to guide the implementation of abortion services. The Constitution of Malawi recognises various human rights, including women’s rights, the right to life, the right to dignity and the right to equality.

The 2013 Gender Equality Act recognises the right to adequate sexual and reproductive health, including the right of access to sexual and reproductive health services, and the right to choose the number of children and when to bear those children.

In addition to these national laws, Malawi has ratified various treaties, including the Protocol to the African Charter on Peoples’ and Human Rights on the Rights of Women in Africa (Maputo Protocol). Article 14 (2) of the Maputo Protocol requires states to undertake appropriate measures to provide access to abortion “in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus”.

Following its endorsement of the International Conference on Population and Development’s Programme of Action, Malawi developed its first reproductive health policy in 1995. The third and latest version of the policy states that service providers in both the public and private sectors shall, within the confines of the law, provide abortion or refer for abortion, clients requiring or requesting the service.

Malawi also assented to the Maputo Plan of Action, which calls for the provision of abortion “to the fullest extent of the law”, and has since reflected this in its reproductive health policies.

In describing the importance to reproductive rights of the Global Abortion Policies Database— a repository of abortion laws and policies of United Nations member States launched in 2017 emphasises that knowledge of abortion laws and policies is critical to ensuring access to safe abortion and to holding governments accountable for realizing access to safe abortion.

 

Transparency

FOLLOWING PROCEEDINGS –Ipas Malawi Senior Policy Consultant Chance Mwabulunju

Jane (pseudonym), a 13-year-old adolescent, was discovered by her parents to be pregnant. It was established that an older man was responsible for the pregnancy. Under the laws of Malawi, it is an offence to have sexual intercourse with a girl younger than 16 years (the man has since been prosecuted and convicted).

The pregnancy was therefore a result of a sexual crime committed against Jane. Her parents took her to a public health facility for assessment and intervention. A medical officer at the facility confirmed that Jane was 18 weeks pregnant and, in their opinion, this was a medically high-risk pregnancy.

Concerned about Jane’s health, but also her interrupted schooling and the financial implications of them raising her child, the parents, with Jane’s approval, asked for termination of the pregnancy. Though expressing sympathy for Jane’s predicament, the medical officer advised them that it would be illegal under the laws of Malawi to terminate the pregnancy.

Jane was forced to carry a medically high-risk pregnancy to term because of the failure of the state to ensure that the abortion law is fully transparent both to potential clients and to healthcare providers.

Lack of transparency and the uncertainty this creates around the question of when it is legal to provide abortion has a chilling effect on healthcare services providers who, as in the case of Jane, would rather interpret the law conservatively and restrictively for fear of prosecution.

Lack of transparency sustains the illusion that all abortion is unlawful, forcing eligible girls and women to carry medically risky pregnancies to term or, indeed, to seek clandestine and unsafe abortions. The burden of interpreting the law should not be on individual healthcare providers. It is the duty of the government to ensure that the provisions of the law are translated into language that is clear and transparent for healthcare providers to implement.

This article draws upon the concept of so-called transparency duties, described as the constellation of duties of the state, arising from obligations under national and international law, to ensure that access to legal abortion is realized in accordance with the law. These duties include disseminating information about lawful abortion to the public and healthcare providers, and putting in place clear guidelines and procedures for the implementation of legal abortion.

The language of the abortion provisions in Malawi’s Penal Code, as explored below, does not provide guidance to healthcare providers or potential clients on what constitutes lawful abortion, who can provide safe abortion, and what methods and medical standards should be followed. The policy directive that abortion should be provided within the confines of the law begs the question of the meaning of “within the confines of the law”, which has not been interpreted in any other policy document or guidelines. Legal rights to access abortion services are unrealizable without the government’s deliberate effort to undertake measures to clarify the law on abortion.

Healthcare providers and institutions, and health rights advocates in Malawi, have common interests in ensuring that the law is clear, notwithstanding the different personal views about abortion various stakeholders might hold. We also presuppose that clarifying the law would inevitably involve juridical interpretation to determine what constitutes lawful abortion.

Without the authority of the court to provide the legal foundation, and the support of the Ministry of Justice and Constitutional Affairs, including the office of the Attorney General, it might be challenging to achieve consensus around what constitutes lawful abortion.

Indeed, this has been the experience in Tanzania and Uganda where, having issued standards and guidelines on access to safe abortion, the Ministry of Health in the respective countries later withdrew them because of disagreements amongst stakeholders about the legality of the guidelines.

 

Lawful abortion

The question of what constitutes lawful abortion is fundamental and undergirds any discussion on the transparency duties of the State. It is a question that has not been answered in Malawi since the enactment of the 1930 Penal Code.

It is necessary to address this question to understand the meaning of providing abortion “within the confines of the existing law”, as stated in policy documents.

Even in England, it had become apparent that the abortion services provisions in the Offences Against the Person Act 1861 (the 1861 Act) were not transparent and clear for the guidance of healthcare providers. A wide variation of opinions, therefore, prevailed amongst obstetricians and medical doctors about the lawfulness of abortion. Some thought it was impermissible even to save the life of the pregnant girl or woman, while others were of the view that abortion could be performed in the interests of the health of the girl or woman.

The Abortion Law Reform Association (ALRA), which had been formed in 1936 in England to campaign for abortion legislation, found an opportunity to have the law clarified when members discovered a case in which a 14-year-old girl was gang-raped resulting in her pregnancy. Dr Joan Malleson, a medical practitioner and supporter of ALRA, requested that Dr Bourne, a prominent gynecologist, perform the abortion.

Following the procedure, Dr Bourne was charged with the offence under Section 58 of the 1861 Act, the provision from which Section 149 of the Penal Code of Malawi derives. In his defense, Bourne claimed that he had acted in good faith and for the preservation of the life of the girl. In determining the matter, the court addressed both the application and meaning of the words “for the preservation of the mother’s life” in the Infant Life (Preservation) Act 1929, from which Section 243 of the Penal Code of Malawi derives, which Bourne relied on in defence of his actions. These words, however, were not in Section 58 of the 1861 Act.

The court held that the expression that a person would not be liable if his actions were done in good faith for the preservation of the girl’s or woman’s life, even if not expressly stated in Section 58 of the 1861 Act, were nevertheless applicable to abortion because of the word “unlawful” in the 1861 Act. That is, the 1861 Act prohibited only the offence of “unlawfully” undertaking abortion. The court therefore clarified that abortion was lawful when it was performed in good faith with the view to preserve the life of the patient.

Having clarified the application to abortion of the words “for the preservation of the mother’s life”, the court addressed what these words meant. In the court’s opinion, “The law is not that the doctor has got to wait until the unfortunate woman is in peril of immediate death and then at the last moment snatch her from the jaws of death”. Rather, these words were to be construed in a reasonable sense. The court went on to issue a direction to the jury that it should consider that a doctor acted to preserve the life of the mother “if the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck”.

The determination by a court of law that Bourne did not commit an offence for performing the abortion clarified two things that would be useful for Malawi’s quest to clarify and implement its abortion law. First, there is a distinction between lawful and unlawful abortion. Abortion is lawful when it is performed to preserve the life of the pregnant girl or woman.

Second, the words “preservation of life” should not be construed as meaning the point of imminent danger of death. Rather, it should be understood to include mental and physical health. In the case of Jane, as in the case of Bourne’s patient, factors including physical and psychological health, which point to the quality of life, should be considered in determining the lawfulness of abortion. However, it is incumbent upon the state to provide clear guidance for health providers so that there is no uncertainty about the meaning of preservation of the life of the pregnant girl or woman.

Most importantly, over and above any guidance that may be had from the case of Bourne, Malawi’s interpretation of the abortion law ought to be guided supremely by constitutional and human rights norms and values.

Transparency duties

The surest way to address the vagueness of the current abortion law is to repeal the colonial version and enact new and enabling legislation that is drafted in clear language, reflecting modern medical knowledge and practice, and aligned with human rights standards. The Global Abortion Policies Database shows that several countries have taken that path, including South Africa, Ethiopia, Mozambique, and Rwanda.

Although Malawi is on the unpredictable path of reform, the State cannot defer its transparency duties.

While health and human rights advocates continue to urge reform of the abortion law in Malawi through the political process that is underway, the Ministry of Health should be held accountable for the implementation of the current abortion law. The Ministry of Health should develop and implement standards and guidelines for healthcare providers and the public on lawful abortion.

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