The High Court in Blantyre yesterday ruled that girls and women who become pregnant as a result of sexual violence are legally entitled to safe abortion services—without barriers, without delay.
The ruling came after a harrowing case involving a minor who had been raped and subsequently denied access to a safe abortion.
In her fight for justice which started in 2022, the girl—whose identity is being protected for legal and ethical reasons—filed a lawsuit against a clinician, a medical facility and the Ministry of Health, accusing them of violating her sexual and reproductive health rights.
Presiding over the case, High Court Judge Michael Tembo interpreted Section 19 of Malawi’s Gender Equality Act, stating that any girl who becomes pregnant due to a sexual offence “definitely has a right to seek an abortion automatically upon indications that she had become pregnant as a result of a sexual offence”.
He condemned the clinician’s refusal to provide the abortion, calling it a violation of the law and failure to uphold the minor’s rights.
“It is harsh and inhumane to insist that such a girl keep the pregnancy in such circumstances,” Tembo said.
“It is, therefore, only logical and in accordance with her sexual and reproductive health rights that such a girl be allowed, without let or hindrance, to demand—if she so wishes—access to abortion services.”
Meanwhile, Nyale Institute of Reproductive Health executive director Godfrey Kangaude has welcomed the ruling, calling it historic and progressive.
“This is the first ruling in Malawi to confirm that the GEA provides a legal basis for access to abortion care in cases of child pregnancy resulting from sexual violence.
“We are happy that the ruling makes clear that children who become pregnant through sexual violence have a right to lawful, timely, and compassionate abortion care, and that all health providers and institutions must act in line with the law and Act,” he explained.
For many years, abortion has been a contentious issue in Malawi with civil society organisations advocating for a liberal law to replace a colonial piece of legislation that only permits termination when a pregnant woman’s life is in grave danger.
Meanwhile, the Termination of Pregnancy Bill faces resistance from some sections of society, including religious groups.
The Bill, which partly seeks to extend safe abortion to survivors of sexual assault, was scrapped from Parliament business in 2021 when then Chiradzulu West legislator Mathews Ngwale moved the House to debate it.
