Originally posted on Maravipost in 2015. Available at: http://www.maravipost.com/national/malawi-news/law-and-order/9316-unpacking-malawi-special-law-commission-final-review%E2%80%99-findings-and-recommendations-on-abortion-law.html
The current position of the law is that abortion is illegal in Malawi except where it is performed to save the life of the pregnant woman through a surgical operation. The Special Law Commission (SLC) resolved and agreed that abortion law in Malawi should be liberalized (that is, conditional relaxation of the restrictions) as opposed to decriminalization to cater for certain justifiable instances where termination of a pregnancy should permissible.
Malawi still remains Southern Africans’ country with high mortality rate due to its archaic law which has been in existence for 164 years impinging women and girls proper access to sexual reproductive health services such as safe abortion leading them to resort unsafe abortion when unwanted pregnancy is conceived.
The recent SAFAIDS policy brief reveals that in developing world especially African countries where Malawi belongs, unsafe abortion rate is at 98% while in African developed nations including South Africa, Botswana, Ghana, and Kenya unsafe abortion accounts for 60%.
Current Malawi ministry of health’s report shows that 70,000 women perform illegal abortion yearly with 17% of maternal mortality rate as a result of unsafe termination of pregnancy.
To satiate these findings, Malawi’s law concedes as a contributing factor to unsafe abortion as Section 149 of the Penal Code says that any person who intends to procure a miscarriage of a woman whether she is not with a child, unlawfully administers to her or causes her to take any poison or other noxious thing or use any other means whatever, shall be guilty of a felony and be liable to fourteen years of imprisonment with hard labour.
While the same law in Section 151 of the Penal Code also says that any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or not with child, shall be guilty of felony and liable to three years of imprisonment with hard labour.
With such disparities of the law, there was a general view section 149, 150, 151 and 243 of Malawi’s Penal Code be reviewed if indeed government was serious in tackling high maternal mortality rate amongst women and girls.
This prompted civil society organizations, traditional leaders, legislators, health experts with consultation with faith and religious leaders calling for speedy review of these Penal Code’s section to save women and girls interests.
In responding to this calling, with funding from IPAS, Malawi government through Malawi Law Commission (MLC) instituted a Special Law Commission (SLC) to review the abortion law in relation to the Penal Code in order to come up with findings and recommendation which Malawi Parliament will adopt and pass into law in a bid to reduce maternal mortality prevalence rate.
The SCL review on abortion law started in 2013 comprised of representatives from Ministries of Health an Justice, Judiciary, Episcopal Conference of Malawi (ECM), Malawi Councils of Churches (MCC), Muslim Association of Malawi (MAM), traditional leaders, Malawi Law Society and Malawi College of Medicine.
Special Law Commission’s findings and recommendations derive from consultations it carried through focus group discussion with faith and traditional leaders, youths, medical practitioners, health regulatory authorities regionally and in selected districts including Chitipa, Nkhatabay, Nkhotakota, Mchinji, Dedza, Mangochi, Zomba, Chiradzulu, Mulanje, Blantyre, Lilongwe and Mzuzu.
It is in this regard, The Maravi Post is unpacking the final review’s findings and recommendations which the Special Law Commission presented to the general public through a press conference held on Friday, July 17, 2015 in the capital Lilongwe before the review report is taken into the August House after passing through the Cabinet for approval.
Justice Esme Chombo, the Special Law Commission review on abortion law’s chairperson who presented the final findings and recommendations emphasized that abortion in the country remains illegal although there is relaxation which the public must civil educated.
The development has also excited The Coalition on Prevention of Unsafe Abortion (Copua) which has been advocating for the review of the law since 2000 by engaging Member of Parliament (MPs), media, chiefs, faith leaders, health experts and the general public.
While on the other hand, UNFA Country’s Assistant representative, Dorthy Nyasulu assured the Ministry of health with technical and financial support towards the passing of the bill into law.
These are some of the key highlights of the SLP’ final findings and recommendations for the general public to appreciate the commission’s work done for this particular law, which is emotional.
Proposed grounds for lawful termination of pregnancy
The current position of the law is that abortion is illegal in Malawi except where it is performed to save the life of the pregnant woman through a surgical operation. The Special Law Commission (SLC) resolved and agreed that abortion law in Malawi should be liberalized (that is, conditional relaxation of the restrictions) as opposed to decriminalization to cater for certain justifiable instances where termination of a pregnancy should permissible.
Therefore, grounds as justification for woman to terminate pregnancy including where the continued holding it will endanger the life of a pregnant woman, secondly, where termination is necessary to prevent injury to the physical or mental health of pregnant woman. Thirdly, where there is a severe malformation of the foetus which will affect its viability or compatibility with life and lastly, where the pregnancy is as a result of rape, incest or defilement.
However, victims of these sexual offences are given an opportunity to decide on their own whether to keep the pregnancy or not. Thus, when seeking to terminate a pregnancy, are required to report the matter of their sexual abuses to the police for crime record in the form of police report.
The police report will suffice as evidence that the pregnancy was as result of sexual offence and that health service providers can go a head to terminate the pregnancy based on this report.
The stage at which a woman can terminate pregnancy
Based on various grounds to terminate the pregnancy, only a woman with a pregnancy not exceeding sixteen (16) weeks gestation qualifies as the cutoff point as it gives enough time for a woman to make up her mind on whether or not to terminate a pregnancy.
Reliable proposed service providers-personnel to carry pregnancy termination
With medical expert consultation, health professional regulatory bodies in relation to services which different cadres of health service provide, a properly trained and certified provider with guidelines and procedures depending on gestational age of the pregnancy, are allowed to terminate a pregnancy.
Regarding to different levels of health service providers cadres, legal termination of the pregnancy can be done by a registered medical assistant, midwife and nurse where the pregnancy does not exceed twelve (12) weeks of gestation while not beyond fourteen (14) weeks of gestation or any age of gestation can be performed by a clinical officer and medical doctor respectively.
The nature and conditions of health facility to carry lawful pregnancy termination
Looking at the status of health facilities in the country to conduct legal abortion on the advanced pregnancy which requires more skills to reduce high risk of complications occurring from procedure, SLC recommends that the health facility is approved and certified with ministry of health by also taking into account the following guidelines; able to provide first trimester abortion services (up to 12 weeks of pregnancy) and undertake Manual Vacuum Aspiration for the removal of retailed products of conception among others.
Consent requirements for termination of pregnancy
The commission acknowledges the critical part of consent in the provision of any medical treatment including termination of pregnancy such that the permission must be considered in line with the promotion of sexual and reproductive rights of women while keeping the spirit of international human rights instruments.
Thus, consent for termination of any pregnancy has to come firstly from the woman herself except the pregnant woman who suffers from mental disorder, consent is obtained from woman’s spouse or legal guardian while a girl child requires seeking parental consent.
However, when parental consent is denied due several factors although grounds are satisfied, termination of pregnancy will be carried in the best interests of the child.
Proposed requirements for avoiding frequent termination of pregnancy
Counseling is being emphasized as an integral measure in abortion care services including advice, information, support, education and therapy provisions intending to offer a woman a non-judgmental opportunity to work through her feelings.
Therefore, health facilities and service providers wanting to carry termination of pregnancy are required to provide abortion care with family planning counseling.
Offences for unauthorized termination of pregnancy
The Malawi’s Penal Code criminalize acts of procuring or assisting in the procuring of a miscarriage of a pregnant woman, if found guilty of that offence, the person is liable to serve a prison sentence ranging from three to fourteen years, such offences includes false declaration of rape, incest or defilement, obstructing a person from accessing treatment and carrying unauthorized abortion.
SLC review’s findings and recommendations’ short falls
Although, the review process had a daunting task to come with the recommendations as the subject matter is emotional which attracted mixed reactions and perceptions from legal, moral or religious point of, there was un over sight by ignoring social and economic factors as a demand for termination of pregnancy or carrying legal abortion in the sense that common women and girls will still face challenges in meeting all requirements due to financial muscles which according to commentators the law favours urban women than those in rural areas where health service delivery remains undesirable.
Another shortfall noted is that of the commission failure to come clearly as to how many times be a woman required to terminate pregnancy though the commission recommends counseling which has led fears that abortion will be an order of the day as long as one meets the grounds for termination of pregnancy.
Nevertheless, when passed into a law, Malawi will be amongst African countries which have clear legal framework on termination of pregnancy including Mozambique, South Africa, Zambia, Namibia, Ethiopia, Cape Verde and Ghana.