Abortion laws in Africa are a colonial bequest that characterised abortion as illegal and immoral, with consequential restrictions on access to abortion, with the exception of saving a woman’s life.
Abortion laws vary from country to country. In Africa, South Africa has the most progressive legal regime. The South African Constitution provides an express right to bodily and psychological integrity, including reproductive choice under s. 12(2) as well as a right to reproductive health services under s. 27. Further, the Choice of Termination of Pregnancy Act (COTPA) 1996 does not restrict abortion under the first trimester, and after that, it is permissible in consultation with the health professional.
The constitutions of Rwanda and Kenya allow abortion in respect to health and to save the life of the mother; Malawi allows abortion to save a woman’s life, a situation that is similar to Uganda. In Zimbabwe, in addition to saving the life and physical health of the woman, the Termination of Pregnancy Act 1978, allows abortion where there is a risk to the physical and mental defect of the child born, or the foetus is a result of unlawful intercourse, excluding marital rape (s. 5). Rwanda, Zimbabwe and Malawi require a court order as a prerequisite for legal abortion.
Abortion is one of the most contentious issues mired by political, social, cultural and religious contestations. Both the cases in South Africa were brought by the Christian Lawyers Associations. In Christian Lawyers Association of South Africa and Others v Minister of Health and Others, 1998(11) BCLR 1434 (T), (hereinafter referred to a Christian Lawyers Association 1998 and Christian Lawyers’ Association v National Minister of Health and Others 2004 (10) BCLR 1086 (hereinafter as Christian Lawyers Association 2004) highlighted the contested nature of abortion under the Common Law. And the demystification is explained by Glanville Williams.
On one hand, Glanville Williams contends that a still-born child, an unborn child, a viable unborn child, an unborn human being or a living foetus, cannot enjoy the same human rights as a human person. According to Professor Glanville Williams, “English law does not try to answer the question when human life begins, but it gives a clear answer to the question when human personhood begins. It begins with birth, which means that the child must be completely extruded and must breathe” On the other hand, PJJ Olivier and LM du Plessis maintain that the foetus is recognised as a legal person.
Further, both cases considered the comparative jurisdiction on the nasciturus rule in England, Scotland, America, Canada, Australia and Europe, which was in unison that a foetus is not a person. In other words, the term person applies after birth (Roe v Wade [410 US 35; L ed 2nd 147,] Paton v United Kingdom (1980) European Court of Human Right.
In Christian Lawyers 2004, it was clarified that although the German Constitutional Court protects pre-natal life, it equally recognises the countervailing constitutional protection of the woman’s personal autonomy to determine the fate of her own pregnancy. In Bruggemann and Scheutan v Federal Republic of Germany (1977) 3 EHRR 244, the European Commission, while acknowledging the woman’s right to privacy and self-determination, also found it permissible for the state to regulate abortion.
However, in Africa, whether abortion is African or not is an unresolved question, given the oral nature of African history whose codification was primarily done by men. What is of concern is that abortion occurs in Africa, irrespective of the law. It is estimated that 15% of pregnancies in Africa end in abortion”. Moreover, 97% of all abortions that take place in Africa could be classified as unsafe abortion.
Unsafe abortions are rampant globally, moreso in Africa. The Guttmacher 2016 reports found that for each year between 2010 – 2014, 8.3 million women in Africa underwent unsafe abortion. Unsafe abortions refer to “abortions carried out by a person lacking the necessary skills or in an environment that does not conform to the minimal medical standards or both. (WHO 2022). Given that globally unsafe abortion occurs in vulnerable and marginalised groups, renders abortion a public health and human rights issue (WHO 2022).
There are two conflicting framings on decolonisation. On the one hand, decolonisation decries abortion as un-African and an imposition of western values. The decolonisation approach has been criticised for homogenising African culture as the same, static and without any diversity. Yet, culture is so dynamic and shaped by social, economic and political interactions that no uniform interpretation and practices exist. On the flipside, decolonisation is embedded in the common African concept of communitarianism.
A common norm amongst most Africans is the concept of ubuntu, which embodies the principles of reciprocal relationships, characterised by humanness, compassion and dignity to mention but a few. This progressive redefinition of “decolonisation,” amplifies the agency, equitable value and importance of all human beings.
However, the rule of law requires the same standard of limitation of Civil and Political Rights (CPRs) be applied to abortion as economic and cultural rights (ESCRs). In cases of rights which are not absolute in character, the state can limit these rights only when they are justifiable in a democratic society and pass the ‘three-part test’: permissible in law, reasonable or proportionate and justifiable in a democratic society.
In the Christian Lawyers 2004 case, it was held that any limitation upon the freedom of any woman or girl to have their pregnancy terminated, constitutes a limitation under their fundamental rights, which must be reasonable and justifiable in an open and democratic society based on human dignity and freedom.
It is noteworthy that the FIDA-Kenya and JMM Petition relied on the Coalition for Reform and Democracy (CORD) & 2 others [2015] eKLR, that outlined the parameters for the limitation set out in Article 24. These standards include:
First, the restrictions must be precisely prescribed by law … with sufficient precision to enable an individual regulate his or her conduct.”, Second, the restriction must pursue a legitimate aim: as respect of the rights or reputation of others, protection of national security, public order, public health or morals and third, the restrictions must be necessary and proportionate to secure the legitimate aim: Necessity requires that there must be a pressing social need for the restriction.
On the negative side, although framing abortion as a choice is important to recognise women’s agency, it fails to address discrimination in law, procedures and practice that shape’s women’s choices. The liberal choice tends to protect the privileged woman.
It also ignores the power relations and gender imbalances within the economic, social and political arena that con