Court clarifies on abortion
The High Court Zomba Registry has said women and girls seeking to access abortion in Malawi must first present themselves to a doctor and request for abortion services based on existing conditions.
Delivering his ruling on June 15 in a case and between, the State as claimant and Queen Elizabeth Central Hospital director and Minister of Health as defendants, Judge Mzonde Mvula stated that despite legal restrictions on access to safe abortion under sections 149, 150, and 151 of the Penal Code, Section 243 makes an exception when the life and the health of a pregnant woman or girl is in danger.
The case involved CM, a Form One student, 15, who was defiled and fell pregnant during the five-month Covid-19 induced school break last year and through her guardian, sought safe abortion services at Queen Elizabeth Central Hospital’s One Stop Centre Clinic (OSCC) after the pregnancy affected her physical and mental health.
The judge ruled that women and girls seeking abortion should demonstrate to the doctor how a pregnancy would undermine their health and life in general.
Reads the ruling in part: “The applicant was informed by the medical officers at OSCC that QECH could not perform the procedure because termination of pregnancy is illegal in Malawi. Sections 149, 150, and 151 of the Penal Code restricts it.
“However, Section 243 of the Penal Code makes exception in the circumstances where the life of the woman, is in danger because of the pregnancy, and the preservation of a woman’s life includes preservation of her mental and physical health.”
Reacting to the ruling, Dr. Godfrey Kangaude, a lawyer and reproductive health scholar, described it as a welcome step towards an authoritative interpretation of the abortion law.
He said: “This is a good development since current legal provisions on termination of pregnancy are couched in language that makes it difficult for health providers to implement. This ruling opens the door for women and girls to seek lawful access to safe abortion in Malawi.”
Kangaude expressed optimism that the Ministry of Health will take the initiative to advance necessary legal and policy reforms to address the inconsistencies between the current law and Malawi’s obligations under national and international law on reproductive rights of women and girls.
Recent estimates show that six to 18 percent of maternal deaths in Malawi result from unsafe abortion complications.
The ruling was preceded by the case of a 15-year-old adolescent named CM, who was defiled, became pregnant and sought legal redress from the High Court following a decision by Queen Elizabeth Central Hospital to deny her access to safe and legal abortion.
In the case, CM was represented by Mlauzi Legal Solutions through the support of the Women and Law in Southern Africa Research and Educational Trust-Malawi, which works collaboratively with the Centre for Reproductive Rights to advance reproductive rights autonomy in Malawi.
Centre for Reproductive Rights senior regional director for Africa Evelyne Opondo said Malawi ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) and, therefore, government is obligated to take all appropriate measures to protect the reproductive rights of women and girls.
The measures include authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health or the life of the woman.
