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In February 2021, Malawi was due to debate the Termination of Pregnancy Bill in Parliament. The Bill had finally been tabled after years of advocacy and various forms of resistance. There had been much debate over the Bill and what it represents, characterised by rabid resistance from some mainly religious sectors. What the discussion did not address though, is the effect of the continuation of the current position on the rights and livelihoods of women and girls in Malawi, and the impact on Malawi’s compliance with its international obligations. Unfortunately, the Bill was resolutely stifled by ultra-conservative members of parliament, such that any debate on it was blocked.

In its current form, the law on abortion in Malawi is far from clear. There is no stand-alone law regulating access to abortion. Provisions on abortion are found in the Penal Code, where it is criminalised in sections 149-151, 231 and 243. Abortion is illegal and punishable by a prison sentence of up to 14 years. There is an exception to this provision, where surgical intervention is done in good faith to “preserve life”. There is no clarity, however, on what “preserving life” entails, and under what circumstances this would be sufficient.

As a result, many instances where continued pregnancy results in serious physical, mental and psycho-social harm to girls and women are not clearly considered and covered by the law. For example, Malawi records high numbers of rape and sexual assault cases involving young girls, some as young as 10 years old. Many of these girls fall pregnant as a result of the assault but are unable to obtain a safe abortion because service providers are not sure whether or not they would be allowed to terminate the pregnancy in terms of the law or find themselves facing criminal charges. Malawi has a comprehensive One-Stop centre system where victims of sexual assault can obtain medical, psycho-social and legal support. However, this does not include counselling or provision of safe abortion services where it is required.

As a result of the unclear legal provisions about abortion, and cultural and religious attitudes towards sexual and reproductive rights, women and girls generally are unable to access safe abortions. However, this does not result in the reduction of induced abortions. Studies have shown that harsh restrictive laws do not reduce abortions but increase their incidence. Most of these abortions are performed clandestinely in unsafe, unhygienic and uncontrolled environments, resulting in high levels of mortality and morbidity amongst pregnant women and girls. The UN estimates that of the very high maternal mortality rate in Malawi, a fifth of this can be attributed to complications from unsafe abortions. The country consequently spends more resources dealing with these complications and post-abortion care, which is decidedly more expensive in terms of the cost to the health system.

The African Union has set standards for women’s access to sexual and reproductive health rights as espoused in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol). In terms of Article 14(1), states have agreed to ensure the right of women to control their fertility and to choose whether to have children. Article 14(2)(c) clearly sets out a minimum standard in terms of measures required of states to achieve this, which includes ensuring that the law makes provision for safe abortions at least on the grounds of risk of danger to the life of the woman or foetus, risk of harm to the physical or mental health of the woman, in the case of rape or sexual assault and incest. The Maputo Protocol does therefore provide for the right to safe abortion. Malawi, as a state party to the Protocol, is obliged to comply and ensure that its law is in line with international standards.

A glance at the proposed law shows that it does not create any fantastic and over-reaching provisions warranting the kind of vitriol that it has been met with. In fact, it is still quite restrictive, and in line with the laws of several of its neighbours, notably Zimbabwe and Zambia. In terms of the Bill, the law would regulate abortion and clarify the instances in which it is allowed; namely, in the case of risk of harm to the physical and mental health of the pregnant woman, in cases of incest, rape or sexual assault, and where the foetus is likely to be born with a serious disability. In this vein, it is largely in line with the minimum guidelines in the Maputo Protocol.

In addition, Malawi has enacted the Gender Equality Act and a SRHR policy that provides for equal access to sexual and reproductive health rights, which includes the right to control fertility, access to adequate healthcare (including reproductive healthcare) and to decide on whether and when to have children. According to the CEDAW Committee’s General Comment No. 24, it is discriminatory for states to place obstacles on services only women need, such as abortion services. Accordingly, the failure of the state to ensure access to abortion services through the enactment of appropriate legislation constitutes gender discrimination.

The failure to enact a comprehensive law allowing for safe abortion, at least within the standards set by the Maputo Protocol would be a negation of Malawi’s obligations under international law, and a betrayal of women and girls who suffer negative health and psycho-social effects from unplanned pregnancies that happen under many situations, including rape and incest. It is thus important to centre the debate on those that need or require the service, rather than those who are not directly affected but seek to control women and girls’ access.

On this International Safe Abortion Day, we call upon the authorities in Malawi to reconsider law reform to enable access to safe abortion for the many women and girls whose health and psycho-social wellbeing are in danger from the continuance of the status quo.

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