The right to abortion has been catapulted into the spotlight by Dobbs v Jackson, the landmark judgment of the United States (US) Supreme Court that overturned Roe v Wade – a 50-year-old precedent of that court that first recognised the constitutional right to abortion in the US.
The recognition of a right to abortion can often be the first step toward creating an enabling environment for women and girls to access abortions but in some countries in eastern and southern Africa, women and girls continue to face barriers to accessing abortion.
With the US Supreme Court finding that the right to liberty in the US Constitution did not include the right to abortion, we consider the legal protection of the right to abortion in countries closer to home. South Africa with arguably the most liberal abortion rights on the continent where access is nevertheless still a problem, Namibia for its inherited restrictive abortion legislation that has since been repealed in South Africa, and Uganda for its expressed constitutional restriction of abortion.
The rights context
Internationally, in a human rights context, reproductive rights like maternal healthcare enjoy somewhat universal recognition, however, abortion care still lags behind. This is mainly because abortion is often not seen as a basic healthcare service and reproductive right that should be available to women and girls.
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003), (also known as the Maputo Protocol) is a robust and progressive regional human rights instrument that recognises women and girls’ rights to sexual and reproductive health. It is the first international human rights instrument that explicitly mentions abortion as a human right. In article 14(2)(c), it states that women in member states have the right to medical abortion in cases of sexual assault, rape, incest, and where the pregnancy endangers either the health of the woman or girl or the life of the woman, girl or the foetus.
Uganda, Namibia, and South Africa all ratified the Protocol.
On ratifying the Maputo Protocol, Uganda, however, registered a reservation to article 14(2)(c). Uganda stated that it was not bound by the article unless it enacted domestic legislation making provision for this right. South Africa and Namibia registered no reservations to this article.
Abortion in South Africa
When it comes to access to abortion in South Africa, the battle has both been lost and won on some fronts. The country has a solid constitutional and legal framework that provides for safe abortion services. However, due to failures in implementation, access to abortion continues to elude women and girls and in many ways, the right to abortion is negated in this country. (Spotlight has reported extensively on this here, here, here, and here.)
As Charlene May and Khuliso Managa have argued in Daily Maverick, although Dobbs does not directly affect our law, it will contribute to the existing barriers to access abortion services in the country by, for example, “legitimis[ing] patriarchal stereotypes of womxn in their diversity, entrench[ing] stigmas that weigh down abortion rights, and will only serve to encourage the conservative anti-rights actors, resulting in more legal challenges to our abortion regulations in our courts and more efforts on the ground to frustrate access to existing abortion services”.
So what will Dobbs mean for countries like Namibia and Uganda where women face more legal restrictions on abortion access?
Abortion in Namibia
The Namibian Constitution does not entrench the right to health. There are, however, other constitutional rights from which the right to abortion can be inferred, like the right to liberty and human dignity. Although Namibia has ratified international treaties to promote women’s rights to sexual and reproductive health, the country has not made progress when it comes to addressing access to abortion.
Currently, the Abortion and Sterilisation Act, which has since been repealed in South Africa, continues to be in force in Namibia. The country’s prevailing legislation regulating abortion was inherited before it became independent from South Africa in 1990. The Act restricts abortion to circumstances where the pregnancy seriously threatens a woman or girl’s life or health; there is a severe foetal anomaly; or where there has been rape, incest, or otherwise unlawful sex.
With the Act in effect, the Namibian government maintains that it is meeting its obligations under article 14 of the Maputo Protocol. This ignores the cumbersome bureaucratic process that requires a woman or girl to get the approval of two doctors, neither of whom can be allowed to perform the abortion. In the case of rape, there needs to be a certificate from a magistrate and in the case of threat to the mental health of the woman or girl, there needs to be a certificate from a psychiatrist. Significant delays in getting approval often result in women and girls carrying their pregnancies to term. Alternatively, they resort to unsafe abortions or baby dumping, both of which are criminalised in Namibia.
The challenge to women and girls accessing reproductive health services lies in the lack of appreciation of their bodily autonomy. For instance, some healthcare workers may deny them access to reproductive services like contraceptives due to personal beliefs against pre-marital sex. There is also the societal belief that women are the “mothers of the nation” and that it is their destiny to reproduce and care for children, whether or not the pregnancy was planned. These gender roles and norms are far-reaching; and in Namibia, an individual’s right to decide whether or not to reproduce is effectively a decision subject to regulation by the State.
Namibia court rules on HIV forced sterilisation case http://t.co/97YP4p8RT7 pic.twitter.com/xPDZRgWfNg
— Times LIVE (@TimesLIVE) November 3, 2014
Some sparks of hope
Women’s bodily autonomy in the context of reproduction was raised in Government of the Republic of Namibia v LM & Others (2014), a case on the forced sterilisation of three women on the basis that they were living with HIV. In this case, the Supreme Court began by making reference to the constitutional rights to dignity, bodily integrity and the right to found a family. The right to found a family was interpreted to include the right of women to bear children, and their right to choose and plan the size of their families. The Supreme Court then found that there was no informed consent by the three women before their procedures. Although the case related to sterilisation, it is a ground-breaking decision that lays the foundation for the recognition of reproductive rights. Should Namibian legislators choose to build on this recognition, it could pave the way to legalising abortion on demand.
In 2020, Namibian activists led a call to liberalise abortion laws in Namibia. The Namibian Parliament then declared a process for public hearings on abortion, which commenced in 2021 and are still occurring. So far, the hearings have been polarising. On the one hand, they have revealed a slow change in the societal perception of abortion as a human right and health service. On the other hand, they have shown conservative views that the unborn foetus is more important than the rights of women or girls; and should women and girls be given the right to decide to have an abortion many would terminate their pregnancies.
At present, Namibia is at a watershed moment that will determine whether its abortion laws remain restrictive or become more liberalised and Dobbs will now likely embolden the prevailing anti-rights sentiments at a time when the country cannot afford this.
Laura & Rabia discuss the overturning of Roe v Wade & the huge implications for women & girls, healthcare professionals & anyone providing support. It’s scary, barbaric & fundamentally makes women second class citizens incapable of making our own decisions. pic.twitter.com/xfrnyh93Oo
— Laura Richards BSc MSc MBPsS (@thecrimeanalyst) August 17, 2022
Abortion in Uganda
The Ugandan Constitution protects the right to life and it expressly provides that no person has the right to terminate the life of an unborn child except as may be authorised by law. To date, no such law has been enacted.
The only law on abortion in the country is that which criminalises it. Uganda’s 1950 Penal Code Act, a remnant of its colonial past, criminalises attempts to get an abortion, facilitating a miscarriage, and the supply of drugs intended to procure abortions (with penalties of imprisonment of up to 14, seven, and three years, respectively). There is a criminal defence that can be raised by a doctor who performed a surgical abortion when the life of a woman or girl was at risk.
In 2006 and 2012, through a national policy, access to abortion was allowed in cases involving a foetal anomaly, rape and incest, or if the pregnant woman or girl is HIV-positive. Nonetheless, despite this development, this policy is applied and interpreted inconsistently and confusion abounds regarding whether a particular abortion is legal. In 2015, Uganda passed a technical standard and guideline to end maternal mortality due to unsafe abortion but it was opposed by religious sections of the society and the minister has since delayed implementation indefinitely.
The restrictive position on abortion in Uganda has done at least three things.
First, it has created a general assumption amongst women and girls in the country that abortions are completely banned, thus driving them to seek unsafe abortions from the outset. This contributes to positioning abortion as clandestine and outside of the purview of basic healthcare services.
Second, the law has made it extremely difficult for healthcare workers to provide safe abortion services. The law also criminalises conduct in life-threatening situations where healthcare workers attend to women and girls who are suffering severe complications from procuring an unlawful abortion. In addition to the criminal sanctions, a healthcare worker that has attempted to provide an unlawful abortion or supplies drugs can be publicly shamed or arrested and clinics that are suspected of providing abortion can be closed, thus, fuelling fear and stigma around safe abortion practices.
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Third, the restrictive laws have led to adverse health outcomes for women and girls. In 2014, unsafe abortions contributed to over a quarter of the maternal deaths in Uganda. In addition to this, women and girls also suffer severe and permanent disabilities because of unsafe abortion.
EALA Committee on General Purpose meets with development partners to plan for the Public Hearings on the EAC Sexual and Reproductive Health Rights Bill, 2021. pic.twitter.com/WW1PCwtdXo
— EALA (@EA_Bunge) February 21, 2022
An opportunity for change
Recently an opportunity to prevent unsafe abortions presented itself through the East African Legislative Assembly (EALA)’s proposal for a regional Sexual Reproductive Health Bill. The bill has been discussed for at least a decade and is opposed by pro-life religious movements as promoting immorality in the region. Uganda, as a member of the East African Community, would be expected to abide by the framework set by the regional body.
If Uganda is to be more progressive on issues pertaining to reproductive justice in its laws, the starting point would be to build on the constitutional rights to health services, equality and human dignity, and to seize the opportunity presented in its constitution (and by EALA, if the Bill is enacted) to liberalise abortion. Legislators must be guided by human rights, science and statistics in the region as opposed to conservative religious hegemony. However, Dobbs will here, just like elsewhere in the world, likely put some brakes on any attempts at broadening women’s reproductive rights as it pertains to abortion access.
Furthermore, although the path towards abortion liberalisation in Namibia and Uganda remains unclear at this point, what is clear is that even if these countries do liberalise their abortion laws, they will discover, as with South Africa, that there are many more hills to climb before access to abortion becomes a reality for women and girls.
*The co-authors are alumni of the LLM/MPhil (Sexual and Reproductive Rights in Africa) programme at the Centre for Human Rights based at the University of Pretoria. Sibusisiwe Ndlela is an attorney at SECTION27, Charlemaine Husselmann is a project manager at Konrad Adenauer Stiftung, Namibia, and Primah Kwagala is the executive director of the Women’s Pro bono Initiative in Uganda.
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