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Tough penalties in new abortion law

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By Mateyu Sisya:

Continued from last week

It is possible that sometimes due to reasons better known to a health service provider access to termination can be refused or in relation to any broader termination services. In such a scenario, the proposed law in section 11 provides that the pregnant woman has the right to lodge a complaint to a complaints handling committee which shall be established at all approved health facilities.

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The committee shall be headed by a certified health service provider not below the rank of a clinical officer to hear complaints emanating from the provision of termination of pregnancy services. If there is no clinical officer at the health service facility, the complaint shall be referred to a nearby health facility where there is one available. A complaint once lodged has to be heard and determined within 30 days.

Section 12 provides for offences that one can commit under the proposed law. If one performs termination services if he or she is not a certified health service provider. This is in line with the requirement and the spirit of the proposed law that it needs to put in place a framework where only those who have the requisite skills and professionalism should be providing termination of pregnancy services. Thus, if one is not certified and performs termination services, he/ she commits an offence under the proposed law.

In the same spirit, the proposed law makes it an offence for one to procure her own termination of pregnancy. As already stated in section 12 paragraph (a) only those who are skilled and have the professionalism will be authorised to carry out termination of pregnancy services. A woman who is pregnant does not have the skills and professionalism to carry out termination services. The proposed law recognises that self-induced terminations will not be done at a health facility so the restriction to self- procuration of termination services.

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Further, since the proposed law has set down the four (4) grounds upon which a pregnancy can be terminated, it will be an offence to terminate for any other grounds outside the four. In addition, if a termination is done at a place not approved, that will be an offence. As stated, the aim of the proposed law is to make sure that the termination of pregnancy services are well regulated and are safe for the wellbeing of the pregnant women and that there is no complications that would require expensive post-termination care, hence the reason for creating an offence if a termination is done at an unapproved facility.

Since the proposed law has provided for access to safe and legal termination of pregnancies, it will be an offence for an unauthorised pharmacist to supply or to unlawfully or procure from any other person anything that is intended to be unlawfully used to terminate a pregnancy. Once the law is in place there shall be no need to do terminations clandestinely or without the legal backing. In the same vein, it shall be an offence to force a pregnant woman to terminate a pregnancy against her will. The issue of consent comes into play again here.

The section concludes by stating that once one is found guilty, he/ she shall be liable to a maximum of fourteen (14) years imprisonment with hard labour.

Section13 provides that if one fails to provide counselling to a pregnant woman before or after termination services, or failure to get consent except where the pregnancy is as a result of rape, defilement or incest one shall be committing an offence. This solidifies the issue of an informed opinion and makes it clear that only those who have made up their opinion shall be allowed to terminate pregnancies which parry away the fears that once the law becomes liberalised women will be terminating pregnancies willy-nilly.

In addition, disclosure of information and records regarding any termination is also an offence (again, this protects women from shying away from accessing termination of pregnancy services for fear of publication of their information which would eventually lead to going back to unsafe and clandestine services). The offences in section 13 attract a fine of K3 million and imprisonment of 3 years with hard labour.

Section 14 of the proposed law makes it an offence punishable by imprisonment of five (5) years imprisonment with hard labour if one knowingly makes a false declaration of rape, defilement or incest. The catch word is knowingly. The false declaration has to be made knowingly. So if a woman innocently believes that her pregnancy is as a result of rape, defilement or incest the offence will not have been committed.

Section 15 realises and acknowledges that access to provision of termination services is as of right to those who qualify therefore it makes it an offence punishable with a fine of K5 million and imprisonment of 5 years with hard labour if one obstructs a woman from accessing termination of pregnancy services.

Section 16 provides that if any person contravenes any provisions of the proposed law he/she shall be liable to imprisonment of five (5) years with hard labour unless a sentence has already been provided for.

Section 17 of the proposed law has given power to the Minister to make regulations under the Act as subsidiary legislation to regulate the working of the law.

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