Understanding Abortion Access in Africa
When Dr. Nkoszana Dlamni-Zuma became the first woman elected chairperson of the African Union (AU) in 2012, she remarked, “My election is not a personal victory but a victory for the African continent in general and for women in particular…. it is only if men and women reach their full potential that we as a continent shall reach our full potential.” The status of African women is a good reflection of the situation in the continent itself, where they have been at the heart of the long tradition of African cooperation. The African Union, founded in 2002, had its antecedents in the Organization of African Unity, formed in 1963, but the Pan-African Women’s Organization dates back to 1962.
Every African nation except Morocco is a member of the African Union, whose management functions are handled by the AU Commission (AUC). African jurisprudence on rights predates the union, however. One of several early human rights documents, the 1981 African Charter on Human and Peoples’ Rights, was the precursor to the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, better known as the Maputo Protocol, which was the first international treaty to explicitly guarantee a right to abortion.
In reality, many African women face numerous obstacles when trying to exercise that right, in no small part because governments have failed to back abortion access. Women then must take matters into their own hands, leading to the current high unsafe abortion rate of 28 per 1,000 women in Africa overall.
Confusion about when abortion is legal—or if it is legal at all—exists among women, policymakers and providers in many areas, making safe procedures needlessly difficult to access.
African women fending for themselves is nothing new. In a speech before the African Union 50th Anniversary Heads of States Summit in July 2013, Nigerian-British scholar Amina Mama extolled African women, who have been “creatively fending for themselves and their dependents … before, during and since colonialism, despite colonialism, and with minimal government support.” A report written by the AUC Department of Social Affairs and Ipas, “Interpreting and Implementing Existing Abortion Laws in Africa,” takes the creative tactic of finding unexplored room for improvement in abortion access without challenging the existing legal framework head-on.
The legal status of abortion in Africa is, on paper, better than in some Latin American countries where abortion is effectively outlawed—no African country has a complete ban on abortion, and postabortion care is required in all cases and all nations. But confusion about when abortion is legal—or if it is legal at all—exists among women, policymakers and providers in many areas. As the AUC and Ipas pointed out, the letter of the law is not the full story.
The following are some strategies for broadening the interpretation of current laws.
Definition of Health
Statutes allowing abortion for health reasons deserve a closer look. The World Health Organization’s definition of the word health—“a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”—encompasses cases of rape, incest or a threat to a woman’s mental health.
Protection of Life
At the UN level, no human rights document recognizes the right to life before birth. So in Madagascar, one of the African countries whose constitution mentions the protection of life, the wording still leaves room for allowing abortion when a woman’s life is threatened by a pregnancy.
International and Regional Law on Women’s Rights
The Maputo Protocol
A majority of AU member states have ratified the protocol, which went into effect in 2005, with only two countries signing with reservations to Article 14, the section affirming the right to a safe abortion.
Article 14[c] of the Maputo Protocol reads:
“States Parties shall take all appropriate measures to: protect the reproductive rights of women by authorizing medical 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 fetus.”
The African Commission on Human and People’s Rights, which developed the protocol, was able to marshal such strong support for abortion access because it was equipped with the proper authority. The African Charter specifies that the Commission may “formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples’ rights.” African legal scholar Charles Ngwena said that including the right to abortion in Maputo was a strategic move, ensuring that “the violation of abortion rights by the nation-state cannot be insulated from human rights scrutiny by the African Charter treaty bodies.” In other words, a woman’s right to reproductive healthcare lies above the fray of national politics and shifting political agendas.
Women’s right to reproductive healthcare is based upon the right to dignity and to be free of “cruel, inhuman and degrading punishment or treatment”—which extends to women seeking postabortion care.
Most African states have human rights principles embedded in domestic laws, so that any nondiscrimination principles are amplified by the robust understanding of discrimination found in the Maputo Protocol. One of these parallels can be found in Article 21 of Uganda’s constitution dealing with “Equality and freedom from discrimination,” which says, “All persons are equal before and under the law.”
The AUC’s 2011 African Charter on Human and Peoples’ Rights pointed out Nigeria’s high maternal mortality rate and recommended that Nigeria “ensur[e] that unsafe, out of hospital abortions are prevented.” Decriminalizing abortion is a proven way to prevent unsafe abortion, so urging governments to prevent unsafe abortion is another oblique method of challenging the status quo.
Reducing maternal mortality has the potential to gather broad political support. In 2010, the African Union Commission adopted the Campaign for Accelerated Reduction of Maternal Mortality in Africa (CARMMA), which has been launched by over 40 AU nations. In 2012, the AUC’s Annual Status Report on Maternal, Newborn and Child Health in Africa pointed out the relationship between restrictive (or poorly implemented) abortion laws and high maternal mortality and urged countries to reform these laws.
The AU is currently formulating a detailed implementation strategy for the protocol.
Because the constitutions of most African nations establish international treaties as having an equal—or in some cases, a higher—level within national law, inter-national conventions favoring repro-ductive health can provide a fulcrum for shifting domestic policies.
For example, every country on the continent—with the exception of three—has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The CEDAW committee has equated the refusal to provide women’s reproductive health services to discrimination and directed states to use a broad definition of health extending to mental health. According to CEDAW, the state must create a framework allowing women to access safe procedures “with the necessary legal security” for women and for providers.
Colonial law and the Commonwealth
A nation’s colonial past or present Commonwealth ties can act as a conduit for legal precedents affirming women’s rights into domestic policies. Sierra Leone is one of several Commonwealth countries to model its abortion policy after England’s 1938 Rex v. Bourne decision, which established necessity—that is, threats to a woman’s mental and physical health—as grounds for legal abortion.
In 2004, Ethiopia, which previously allowed abortion only in cases where a woman’s life or health was at risk, passed a more liberal law allowing abortion in cases of rape, incest, fetal abnormality and for women with physical or mental disabilities.
The Technical and Procedural Guidelines for Safe Abortion Services implementing the law in 2006 stated that unsafe abortion is one of the top 10 reasons for hospital admissions among women. The guidelines cite Ethiopia’s commitment to women’s rights through CEDAW and the unsafe abortion rate as the impetus for developing national standards for health workers.
Ethiopia has since established programs to raise awareness about legal abortion, reduce stigma and train more providers. In 2010, 15 percent of women seeking abortion care needed treatment for complications of a previous unsafe abortion, down from 50 percent just two years earlier.
Ghana’s 1985 law is one of the most liberal in Africa, yet it remained unimplemented until the Ministry of Health began creating structures to make abortion available in 2005. The law states that abortion should be legally available to protect the life or health of a woman, in cases of rape and incest, and if there is a fetal abnormality. Ghana’s maternal mortality ratio was 580 per 100,000 live births in 1990 but by 2010 had dropped to 350, according to UNFPA data. Still, in 2010 the Guttmacher Institute estimated that 11 percent of maternal deaths were due to unsafe abortion.
Policymakers in Ghana have rallied around decreasing maternal mortality. According to Hon. Nana Oye Lithur, Minister for Gender, Children and Social Protection,
“We have been able to work within our law, with the kind assistance and support of our partners to achieve a lot in addressing maternal mortality and reducing unsafe abortion in Ghana…. The current policy and legal framework is satisfactory, and we are working hard on improving services, training healthcare providers, police officers, judges and empowering women with knowledge on sexual and reproductive rights.”
In Ethiopia in 2010, 15 percent of women seeking abortion care needed treatment for complications of a previous unsafe abortion, down from 50 percent just two years earlier.
The Ghana Health Service’s 2005 guidelines raised awareness among providers and the general public about the legality of abortion, as well as establishing standards for the provision of abortion and contraception and the training of more abortion providers.
Ghana’s protocols for medical abortion and for the broad interpretation of health now follow WHO standards.
Since 1972, abortion has been legal in Zambia under a wide variety of circumstances: to preserve a woman’s life, physical health or mental health; in the case of fetal impairment; or for economic or social reasons. But in 2000, a survey of adolescents in urban Zambia found that two-thirds of unwanted pregnancies were terminated through unsafe abortions. Overall, according to Dr. Victor Mukonka, director of public health and research for the Ministry of Health, unsafe abortion contributes to 30 percent of Zambia’s maternal deaths.
“The Ministry of Health is taking firm and steady action on maternal death…. It should be noted that safeguarding women’s reproductive health is one of the key national health priorities, which is now (finally) receiving its due.”
In 2009, the Ministry of Health published guidelines for the implementation of the abortion law and is addressing the lack of providers. A study of 25 hospitals published by Ipas in 2011 found more safe abortions were being provided in two areas, with a decrease in postabortion care being observed in some regions.
One of the biggest obstacles to accessing a safe, legal abortion in Zambia remains in place, however: the requirement that women receive permission from three physicians for the procedure. Also, while a 2005 amendment expanded legal abortion access to children who had been raped, this does not apply to adult women.
Homegrown Solutions to Women’s Reproductive Health Needs
“The secret of African resilience is something we take so much for granted that we too easily overlook it,” Nigerian scholar Amina Mama said in her speech before the African Union. She focused on “African women’s invisible work” on sustaining communities and society itself. As Dr. Mustapha Sidki Kaloko, AU Commissioner for Social Affairs, says,
“Africa can generate homegrown solutions to its problems, which are not completely alien to the continent as some of them are consistently being used to drastically cut down the mortality and morbidity in many countries.”
Zambia, Ghana and Ethiopia have shown that the political will to put women’s health first can unearth tremendous room for improvement within existing laws. This approach holds promise for the rest of Africa, but perhaps any region living under restrictive laws can also learn from African creativity for addressing women’s reproductive health needs.