Abortion Law Reform in Sub-Saharan Africa: No Turning Back

Abstract

Stigma and silence surrounded unsafe abortion in Africa until the International Conference on Population and Development in 1994. Up to five million unsafe abortions are performed in Africa every year, with young women disproportionately affected. This paper summarises the colonial origins of current abortion laws and efforts in the region to provide post-abortion care. Much as it helps to save lives, however, post-abortion care will not eliminate unsafe abortion. There is a need to do away with restrictive laws. The paper describes efforts in several countries to change the law, focusing on Kenya, where organised opposition to reforming the law has emerged and led to the arrest of three service providers. Regional bodies, including the African Union, have taken a stand on abortion within the wider context of safe motherhood and reducing maternal mortality, and advocacy for better abortion laws is increasing across the region. As more girls remain in school and the marriage age increases, the inadequate provision of family planning and abortion care will cause Africa to lose many young women through unsafe sexual activity, unwanted pregnancy, unsafe abortion, early childbearing and HIV infection. The time has come in Africa for a commitment to eliminate deaths and disability from unsafe abortion and respect women’s right to decide the number and spacing of their children.

Résumé

Jusqu’Á la Conférence internationale sur la population et le développement en 1994, la stigmatisation et le silence entouraient les avortementsàrisque en Afrique où près de cinq millions de ces avortements sont pratiqués chaque année, en grande proportion sur des jeunes femmes. Cet article résume les origines coloniales des lois sur l’avortement et les activités pour assurer des soins post-avortement. Si ces soins sauvent des vies, ils n’élimineront pas pour autant les avortementsàrisque. Il faut abolir les législations restrictives. L’article décrit les efforts pour changer la loi dans plusieurs pays, notamment au Kenya où l’oppositionàla réforme législative a conduitàl’arrestation de trois praticiens. Les organes régionaux, notamment l’Union africaine, ont pris position en faveur de l’avortement, dans le contexte plus large de la maternité sans risque et de la réduction de la mortalité maternelle, et le plaidoyer pour de meilleures lois sur l’avortement s’étend. Alors que davantage de filles poursuivent leurs études et que l’âge du mariage recule, l’insuffisance des services de planification familiale et d’avortement causera le décès de beaucoup de jeunes Africaines, en raison des rapports sexuels non protégés, des grossesses non désirées, des avortementsàrisque, des maternités précoces et du VIH. L’Afrique doit maintenant s’engageràéliminer les décès par avortement etàrespecter le droit des femmesàdécider du nombre et de l’espacement des naissances.

Resumen

El aborto inseguro en África estuvo rodeado de estigma y silencio hasta la Conferencia Internacional sobre la Población y el Desarrollo en 1994. Cada año se practican hasta cinco millones de abortos inseguros en África, que afectan a las mujeres jóvenes en particular. En este artáculo se resumen los orágenes coloniales de las leyes de aborto y los esfuerzos actuales en la región destinados a aumentar los servicios de atención postaborto. No obstante, para eliminar al aborto inseguro no sólo es necesario prestar atención postaborto, sino también acabar con las leyes restrictivas. Este artáculo se centra en Kenia, donde surgió una oposición organizada a la reforma de la ley, que llevó al arresto de tres prestadores de servicios. Organismos regionales, incluida la Unión Africana, han adoptado una postura respecto al aborto, dentro del contexto más amplio de la maternidad sin riesgos y la disminución de la mortalidad materna, y la promoción y defensa de mejores leyes de aborto está aumentando en toda la región. A medida que más niñas permanezcan en la escuela y la edad de matrimonio aumente, la prestación inadecuada de servicios de planificación familiar y aborto causarán que en África perezcan muchas mujeres jóvenes a consecuencia de la actividad sexual sin protección, el embarazo no deseado, el aborto inseguro, la maternidad a temprana edad y la infección por HIV. Llegó el momento en África de comprometerse a eliminar las muertes a causa del aborto inseguro y de respetar el derecho de las mujeres a decidir el número y espaciamiento de sus hijos.

Keywords:

• young women
• unsafe abortion
• post-abortion care
• abortion law and policy
• advocacy and political process
• Kenya
• Africa

The African continent bears a disproportionately large percentage of the world’s burden of disease. Its share of reproductive ill-health is even more disproportionate, with unsafe abortion the most neglected aspect. The stigma and silence that surrounded unsafe abortion in Africa until the International Conference on Population and Development (ICPD) in 1994 were largely responsible for this neglect, and explain the low profile of unsafe abortion on the agenda of most national governments, communities and funding bodies. In the decade following ICPD and the Fourth World Conference on Women in Beijing, the transformations occurring in the policy environment, the growth in information and safe technology for abortion care and enhancement of skills, and the rising status of women on the continent are fueling a dynamic process that offers Africa the opportunity to follow the developed world in eradicating abortion-related deaths and morbidity.

This article summarises data on unsafe abortion in Africa and the colonial origins of current abortion laws, national programme efforts in the region to provide post-abortion care and change restrictive laws. It then focuses on the highly charged situation in Kenya where organised opposition to abortion law reform has emerged, and future perspective for the continent.

Short history of unsafe abortion in Africa

Over 28 million women in sub-Saharan Africa want to space or limit births but do not use contraception.¹ With maternal mortality ratios averaging over 800 deaths to 100,000 live births in Africa it is imperative to accelerate the pace of change.² Over four million unsafe abortions are performed in Africa every year, mostly on poor, rural and young women lacking information on the availability of safe abortion care. The World Health Organization estimates that 24 out of every 1,000 African women aged 15—44 have unsafe abortions every year.³ While statistics show that unsafe abortion accounts for 13% of all maternal deaths globally, in Africa recent studies have found that mortality due to unsafe abortion was over 33% in Kenya⁴ and in Ethiopia as high as 50% of all maternal deaths.⁵ It is estimated that 99% of all abortions carried out in Africa are unsafe and the risk of death from an unsafe abortion, one in every 150 procedures, is by far the highest in the world.³

Although reliable statistics are even harder to obtain for morbidity than for mortality from unsafe abortion, almost three-quarters of emergency or total gynaecological admissions to some hospitals in Africa in the 1990s were women suffering from complications of unsafe abortion.⁶ Haemorrhage and sepsis are the most common complications reported, followed by uterine perforation, chronic pelvic pain and secondary infertility.⁷ In Egypt, for example, it was estimated that more than two-thirds of women undergoing abortions were hospitalised for complications resulting from unsafe procedures, and in Nigeria almost one quarter.⁸

In Africa, young women are disproportionately affected by unsafe abortion. For the region as a whole, 59% of unsafe abortions are among young women below the age of 25.³ A review of 13 studies in seven sub-Saharan African countries found that adolescents between the ages of 11 and 19 accounted for 39—72% of abortion-related complications.⁹ In Lusaka, Zambia, for example, 60% of women hospitalised for abortion complications were aged 15—19, while in western Zambia, abortion-related complications were found to be responsible for the death of one in every 100 schoolgirls each year, according to a community based study.¹⁰ In a 1992—94 study in Ilorin, Nigeria, adolescents aged 15—19 formed 53% of 144 women treated for abortion complications and another 24% were aged 20—24. Teenagers were more likely than women in the older age groups to obtain their abortion in the second trimester of pregnancy.¹¹

Apart from the cost in human lives and ill health, treatment for the complications of unsafe abortions consumes scarce health care resources. Women with abortion complications form the majority of patients on many gynaecology wards (sometimes over 50%). They require emergency care, beds, antibiotics, blood and other supplies, theatre facilities and health care providers’ time. The cost of treatment for complications represents many times the total per capita health expenditure. A 1993 Tanzanian study estimated that the cost per day of providing post-abortion care was more than seven times the annual amount allocated by the Ministry of Health for per capita health expenses.¹²

Unsafe abortion is not “just a woman’s issue”. It has serious effects on families and communities. Creating a better future for all Africans requires addressing this issue more compassionately and effectively than is currently the case.

Colonial origins of African abortion laws

Every country in Africa has at least one indication for which abortion is allowed by law. The imperative in the region, therefore, is to promote the provision of safe abortion services to the full extent of the law and to advocate for a review of all the laws, with a view to abolishing them altogether.

The restrictive abortion laws that still prevail in almost all the countries on the African continent are a major cause of unsafe abortion. These laws have all been inherited from pre-independence colonial laws. There were five such models, deriving from the laws of France, England, Belgium and Portugal, the major colonial powers, and from Dutch-Roman law as practised in South Africa. These can be divided into two broad categories, those based on civil law (France, Belgium and Portugal), and those based on common law (England and South Africa).^{13 *} These former colonial countries (except Portugal) have since amended their own national laws in recognition of the public health hazard posed by unsafe abortions and of women’s reproductive rights.

Decades after the last Africa country has declared its independence, African women remain colonised by these outdated laws, whose origins were not based on moral or religious considerations but were put in place to prevent women from being butchered by the quacks of yesteryear, who were untrained and caused the deaths of countless women. It is a cruel irony that laws that were made to prevent the deaths of women in the 19th century should have become instruments of death for African women in the 20th and 21st century.

Progress in delivering post-abortion care across Africa

During the last decade, access to abortion-related care has greatly improved. Hospital-based post-abortion care training and services have been introduced to varying degrees in many countries, including in Egypt, Ethiopia, Ghana, Kenya, Malawi, Nigeria, Senegal, South Africa, Tanzania, Uganda, Zambia and Zimbabwe, and more recently in several Francophone countries, as illustrated in the examples below. To respond to the demand, Ipas is facilitating the expansion of training of service providers through its programme of Woman-Centred Abortion Care, which includes the use of its new manual vacuum aspiration equipment (MVA Plus), and issues of sustainability, support and supervision of providers, and is documenting the outcomes. The private sector is also expanding its role, and filling the gap left by deteriorating public health systems.¹⁴

•	Operations research in Ghana to test the feasibility and acceptability of post-abortion care provided by trained midwives led to the expansion of the post-abortion care programme nationwide, linking the primary and secondary level in both the private and public sectors.15
•	In a pilot project in Uganda, 24 midwives were trained in post-abortion care, which resulted in an increased access to services and the treatment of 400 women at primary health centres, regional and district hospitals over a nine-month period alone.16
•	Research in six Kenyan hospitals demonstrating the effectiveness of linking the treatment of complications of abortion with family planning counselling and services led the Ministry of Health to incorporate these services into the expansion of post-abortion care in district hospitals.17 A network of health professionals in western Kenya have been offering referrals and safe abortion services for several years now, which has reduced the number of women seeking care for abortion complications in nearby hospitals.18
•	In Zimbabwe a study demonstrated that the provision of post-abortion family planning counselling and services to post-abortion care patients prior to discharge led to increased contraceptive use, fewer unplanned pregnancies and fewer repeated abortions after 12 months.19

Since the mid-1990s, African women who have had access to post-abortion care services have increasingly benefited from expansion in the use of manual vacuum aspiration by obstetrician—gynaecologists and mid-level providers such as midwives, nurses and clinical officers. However, much as it helps to save lives, post-abortion care is only palliative and will not eliminate unsafe abortion. There is a need to do away with restrictive laws.

National laws on abortion in Africa since ICPD

In the ten years since ICPD, there has been a move towards legal reform and with it, greater provision of legal abortion services in Africa, though transforming policy into programmes on the ground has only just begun, if at all, in most countries.

In South Africa, the 1996 Choice on the Termination of Pregnancy Act, permitting abortion at the woman’s request up to 12 weeks of pregnancy and after 12 weeks in cases of risk to the woman’s health or life, fetal malformation, rape or incest, or if the continued pregnancy would significantly affect the social or economic circumstances of the woman. This law has resulted in increased availability of elective abortion services and a fall in unsafe abortions as more providers are trained and more women become aware that having a safe abortion is legal and possible.^{20 21 22}

Zambia has the most liberal law on abortion after South Africa but it has not yet been translated into safe services for Zambian women; deaths from unsafe abortion are still as high as in other countries in the region. There are serious barriers to accessing services, with no service delivery guidelines and a lack of trained providers. Many Zambians, including doctors, still are unaware of the law and think abortion is illegal in Zambia.¹⁰

Recently Ghana, which has had a law that allows for legal abortion for several indications since 1985, reviewed national reproductive health policy and developed a new strategy, which includes providing services for induced abortion to the full extent of the law. Plans are well advanced to develop service protocols and guidelines for implementation.²³

Mauritius, where clandestine but safe abortions equal the number of births, has also felt the imperative to respond to the felt need of women, and they are taking steps to reform their very restrictive abortion law.²⁴

Between 1996 and 2003 five Francophone countries, with previously very restrictive laws based on the Napoleonic Code, have passed new abortion laws which expand the grounds for legal abortion to case of rape, incest and fetal impairment. They are Burkina Faso, Mali, Niger, Guinea, Chad and Benin.²⁵

In July 2004, the House of Representatives of the Ethiopian government ratified a new clause on abortion in their Penal Code. The new law allows abortion in cases of rape and incest, if the pregnancy endangers the life or health of the woman, there is a risk of fetal abnormality, if the woman is physically disabled or in the case of a minor who is physically or psychologically unprepared to have or raise a child. Following this change in the law, the Ministry of Health will prepare guidelines for implementation.²⁶

The case of Kenya

Maternal mortality in Kenya is very high, in the order of 590 deaths to 100,000 live births, with nearly 30% of deaths from unsafe abortion. The National Assessment of the Magnitude and Consequences of Unsafe Abortion in Kenya, conducted in 2003, showed that over 300,000 women undergo unsafe abortions every year. Over 20,000 women with complications of unsafe abortion are admitted to public hospitals, of which over 2,000 women are estimated to die annually, a 10% case—fatality rate.²⁷

Kenya, like other countries, has committed itself to reducing maternal mortality by 75% by the year 2015 in line with the Millennium Development Goals. This is highly unlikely to happen though it could be achieved easily and at minimum cost if the political will to do so is marshalled. Although abortion is restricted in Kenya, rich women have a way of going round the law to have their pregnancy terminated safely. Many institutions have raised their voices loud and clear on this issue, but not those who are most affected—poor women. Their isolated voices, such as the student who attempted suicide after being made pregnant by her teacher, and a woman who sued a priest for discontinuing financial support to his four children by her, are too few to make an impact. Instead, women die silently.

A public debate on abortion and on proposals to liberalise the abortion law has been raging in the country for some years now,²⁸, ²⁹ led by, among others, a former Permanent Secretary of Health and an alliance formed by the Kenya Medical Association, the Federation of Women Lawyers (Kenya) and Ipas. The debate intensified in May 2004, following the discovery of 15 dead fetuses (which were probably not fetuses at all but stillborn babies or neonatal deaths) in a small stream in Nairobi, along with medical waste and a register of patients of a private clinic. The site which happened to be very close to a church that is outspoken against abortion. This incident was promulgated just three weeks after the dissemination of the study on the magnitude of unsafe abortion in Kenya, cited above, which had received great media and public attention and a positive response from the Ministry of Health, who had announced that hospitals would get “abortion kits” to improve abortion services. Prior to the incident of the 15 “fetuses”, the environment for policy change seemed favourable. After it, there was a huge hue and cry. The Minister of Health’s announcement met with condemnation by church leaders who said: “The kits will end up being used by medical officers who want to make quick money by procuring illegal abortions.”

Then, Dr John Nyamu, the head of the clinic and a prominent obstetrician-gynaecologist, and two nurses were arrested in relation to the incident, and have been in custody ever since, awaiting trial. One of the nurses was 28 weeks pregnant when she was arrested. She was moved to a hospital to deliver and put back in jail with the infant a month after she delivered.

On an almost daily basis during the nine months since this initial incident, dead babies have been found dumped in various locations around Nairobi and in Mombasa and Nakaru. Many believe this is not coincidental, but related to the study on unsafe abortion and the attention it generated. It is important to find out and expose who is doing this, and to address the situation. Unfortunately, some religious bodies and groups and public officials have resorted to condemnation and intimidation of doctors and women, instead of addressing the underlying causes of unsafe abortion in Kenya.

Members of Parliament have been split, with a minority supporting a change in the law and calling for the re-introduction of the Affiliation Act, which made it mandatory for men to take responsibility for the children they fathered, on the grounds that it could help to reduce the rate of illegal abortions.³⁰

The medical fraternity, like parliamentarians and the public, has also been split over the issue. However, the Federation of Women Lawyers (Kenya) has urged the liberalisation of the law, and a former Attorney-General and Constitutional Minister has publicly declared his support for abortion, saying: “When I was the Attorney-General, I would never prosecute those who carried out abortion or those who went for it… I respect their rights. Why go after them when that is their right?”³¹

Prior to this statement by the former Attorney-General, the Minister of Health, barely three weeks after announcing she would equip Kenyan hospitals with abortion equipment, ordered the closure of clinics deemed to be providing illegal abortions. Reacting to the former Attorney-General’s statement, the Minister of Health said: “It is the duty of every Kenyan to speak openly against abortion.” Her changed sentiments were compounded by those of the First Lady, who said that the doctor should be charged with murder.³²

At the beginning of 2004, some delegates to the National Constitutional Conference rejected a proposal by Kenya Medical Association officials to liberalise the abortion law through the new Bill of Rights saying: “Young girls will use it as a form of contraception.”³³ A draft Constitution was adopted by the National Constitutional Conference in March 2004. Although it guaranteed several fundamental rights to the women of Kenya, one article would have eroded these good intentions by stipulating: “Life of a person begins at conception” (Article 34(2)) and “Abortion shall not be permitted unless, in the opinion of a medical practitioner, the life of the mother is in danger” (Article 34(3)). If passed, this Article would perpetuate the criminalisation of abortion in Kenya and deny women their right to life and health. This provision is a sign of the influence and access to lawmaking at the highest levels of religious activists in the country, but it is very contentious. Some have called for it to be taken up by Parliament or a referendum, so it can be removed.

Later in 2004, the Kenyan Ministry of Education released figures that 10—15,000 girls drop out of secondary school every year due to unplanned pregnancies, curtailing their education and personal development, and reducing their contribution to national economic development, quite apart from the dangers of early pregnancy that they are exposed to.³⁴ This year, a poor, 14-year-old girl, a top student, who had received a scholarship to one of the best schools in Kenyan died following an unsafe abortion, underscoring the dangers young women face. The scholarship money had been raised by her Member of Parliament, who happened to be a gynaecologist.

In November 2004, at Dr Nyamu’s first court appearance, there was a confrontation outside the courthouse between religious activists and a group of doctors who are raising funds for the defence. Dr Nyamu has in fact been charged with murder, which carries the death penalty, rather than illegal abortion, which carries a 14-year prison sentence.³⁵

Thus, the environment on the issue of abortion in Kenya has become highly charged. Much of the opposition has been fuelled by a growing, well-organised fundamentalism which threatens to have devastating effects for reproductive health and unsafe abortion in Africa if not counteracted.

The Ipas Africa Alliance has supported the Kenya Medical Association and the Kenyan Society of Obstetricians and Gynaecologists to draft an intervention paper to submit to the Constitutional review. A national reproductive health task force has also been formed that meets weekly or fortnightly, to decide how to respond to these attacks and strategise on the way forward.

Future perspectives

Across the region, advocacy for more liberal abortion laws is increasing. An online discussion group has been established, with membership open to partner groups on the African continent. Recently, a Circle of Friends from 11 countries participated at a workshop which included prominent professionals, artists, legislators, parliamentarians and grassroots activists in Nairobi for further deliberations on how to advance the dialogue on unsafe abortion in Africa. These efforts are being led by broad-based national partnerships and coalitions of health care professionals, women’s groups, governmental and non-governmental actors, human rights and public health activists.

Regional bodies have also taken a stand on abortion, within the wider context of safe motherhood and reducing maternal mortality. In August 2003, the heads of government of the African Union, concerned about rising maternal deaths in the region, approved the Additional Protocols to the African Charter on Human and People’s Rights. Article 14(2c) of the Protocols calls for the involvement of States and their duty to protect the lives of women who are vulnerable to the fatal consequences of unsafe abortion.³⁶ This document, for the first time in an international human rights agreement, recommends States Parties to authorise safe abortion in cases of sexual assault, rape, incest and where continuing the pregnancy would endanger the mental or physical health of the woman or the woman’s life. Furthermore, in 2004, the two main regional health bodies, the West African Health Organization and the East, Central and Southern Africa Committee of Health Ministers, have both endorsed sub-regional strategies aimed at reducing maternal deaths and calling for implementation of abortion services to the extent that national laws allow and a review of the existing laws.³⁷

Forty-three per cent of the African population is below the age of 15.³⁸ Over the next decade, over 600 million girls will mature into adulthood—the largest cohort of young women in the history of the world. As more girls hopefully remain in school and the marriage age increases, the inadequate provision of family planning and abortion care on the African continent will mean that Africa risks losing a growing number of its young women through unsafe sexual activity, unwanted pregnancy, unsafe abortion, early childbearing and HIV infection.³⁹ In Africa, even more than other regions, we need to integrate HIV/AIDS and the broader reproductive health agenda. Maternal mortality, including from unsafe abortion, is a social injustice and reflects society’s failure to value and protect women. We are at the point of no return. The time has come in Africa for a commitment to eliminate deaths from unsafe abortion and respect women’s right to decide the number and spacing of their children.

Notes

* Dutch—Roman law was also the legal system of Namibia, which until its independence was under the direct control of South Africa, and of Lesotho and Swaziland, although both were English colonies until independence.