FEATURE: African Commission on Human and People's Rights calls for decriminalisation of abortion in Africa

22 January 2016

FEATURE: African Commission on Human and People's Rights calls for decriminalisation of abortion in Africa

On 18 January 2016, in conjunction with the African Union Gender is My Agenda Campaign meeting in Addis Ababa, Ethiopia, the African Commission on Human and People's Rights (ACHPR) launched a continental campaign for the decriminalization of abortion in Africa, to bring attention to the extent of unsafe abortion. The Hon. Commissioner Lucy Asuagbor, newly appointed Special Rapporteur on the Rights of Women, spoke during the launch of the campaign and signed the following press release. In 2015, the ACHPR drafted General Comment 2 on Article 14.1 (a), (b), (c) and (f) and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa. This was carried out under the guidance of Soyata Maiga, former Special Rapporteur on the Rights of Women. Its aim was to help governments interpret the right to abortion and family planning under the Maputo Protocol .

ACHPR PRESS RELEASE: Women and girls in Africa are counting on us to save their lives!

The African Commission on Human and People's Rights (ACHPR) through the mechanism of the Special Rapporteur on the Rights of Women in Africa, in line with its Resolution on the Health and Reproductive Rights of Women in Africa, 2007 and with its commitment through a communique on accountability for women's reproductive health taken in March 2015 in Nairobi; has today launched a continental Campaign for the Decriminalization of Abortion in Africa. The ACHPR has done this in order to bring attention to unsafe abortion which poses a serious threat to women's and girl's rights to sexual and reproductive health.

According to the World Health Organization (WHO), unsafe abortion continues to be a public health crisis and one of the largest contributors of maternal mortality and morbidity in Africa, accounting for up to 30% of maternal deaths in many sub-Saharan countries. The WHO estimates that over 6 million unsafe abortions occur in Africa resulting in 29,000 deaths and countless serious injuries and disabilities every year for poor, mostly rural based African women and girls under the age 25.

The ACHPR, is concerned that these deaths occur partly because of laws that criminalize abortion on the presumption that the threat of arrest or imprisonment will prevent women and girls from having abortions. We agree with the WHO that making abortion illegal does not reduce abortion rates and neither does it deter women from having abortions. What instead happens is that more women are pushed to the backstreet where they access unsafe abortions. It is time to bring a stop to these deaths.

The ACHPR is committed to bringing States into compliance with their commitments under the African Charter on Human and People's Rights and the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa (Maputo Protocol); the Maputo Plan of Action; and the Campaign for the Accelerated Reduction of Maternal Mortality in Africa (CARMMA).

To that end the ACHPR calls on Heads of State and Government to demonstrate their commitment to preserving the lives of African women and girls by decriminalizing abortion in their respective countries.

EXCERPTS FROM A SPEECH LAUNCHING THE CAMPAIGN:

Hon. Lucy Asuagbor,

Special Rapporteur on the Rights of Women in Africa

Hon. Lucy Asuagbor

..In 2006 one of the objectives of the Maputo Plan of Action was to reduce unsafe abortion in the continent; in 2009 the Campaign for the Accelerated Reduction of Maternal Mortality in Africa (CARMMA) Best Practice Document stated that: reviewing restrictive laws and making safe services accessible reduces maternal mortality; the 2012, 2013 and 2014 Maternal, Newborn & Child Health Reports to AU Heads of State all make mention of unsafe abortion and urge member states to improve access to safe abortion services, to review laws, and also to work to remove stigma associated with abortion; in 2014 the AU published the Compendium of African Abortion Laws - Interpreting and Implementing Existing Abortion laws in Africa.

One may want to ask this question: if we have all these laws and frameworks, why are our women and girls still dying due to unsafe abortion? The answer is mainly that most African states have maintained colonial and punitive domestic laws that criminalize the right to safe abortion.

Laws that criminalize abortion presume that the threat of arrest or imprisonment will prevent women and girls from having abortions. This means the state has punitive power over women's reproductive autonomy. When these laws are enforced, women's rights are denied. As a consequence, women and girls are punished for making reproductive decisions in the interest of their own health and wellbeing. However the evidence that exists shows that restrictive laws do not prevent women from seeking abortions: they only make them unsafe.

The other important aspect of criminal laws on abortion is that they are discriminatorily enforced and unfairly impact the most vulnerable women and girls. Those who are poor or from the rural area or lack education are at the highest risk of police investigations, arrest, prosecution, and imprisonment for unsafe abortions. The truth is that women with financial resources are rarely arrested or prosecuted for an illegal abortion-this is because they can get safe and private abortion services locally or have the funds to travel to get a safe abortion. Therefore, unsafe abortion is a social equity issue as well...

This campaign builds on existing work by the ACHPR, to promote greater protection and respect of sexual and reproductive rights of women. In particular, the ACHPR developed General Comment 2 which elaborates on the right to sexual and reproductive health. These guidelines are important reference point for civil society organizations and governments as you engage the ACHPR during reporting sessions, undertake law reform in your countries and push for implementation of laws...

This campaign hopes to leverage on the 2016 AU Year of Human Rights with particular Focus on the Rights of Women... I would like to emphasize that we are because you are; therefore this campaign will only be successful if you, the organizations that are working with the people, integrate it into your programs and begin demanding change in your contexts. African Women and Girls are counting on all of us to save their lives: Decriminalize Abortion in Africa!

With those few remarks, I declare the ACHPR Campaign for the Decriminalization of Abortion in Africa officially launched!

ACHPR GENERAL COMMENT 2: EXCERPTS

Introduction

The jurisdiction of the ACHPR results from Article 45.1.b) of the African Charter on Human and People's rights (African Charter), which entitles it to "formulate and develop rules and principles that address legal problems regarding the enjoyment of human and peoples' rights." The Maputo Protocol, which was adopted by the African Union in 2003 and came into force in 2005, falls under the Commission's interpretative jurisdiction.

...The Commission noted with satisfaction the progress reports 2012 and 2013 of the African Union on maternal, new-born and child health... It also noted that many countries are yet to undertake the necessary legislative reforms towards domesticating the relevant provisions [of Maputo], including in the area of women's sexual and reproductive rights. As such, in many States Parties, there is still limited access by women and girls to family planning, criminalization of abortion, and difficulties faced by women in accessing safe and available abortion services, including in cases where abortion is legalized.

...The Protocol puts on State parties the obligation to protect women's reproductive rights, particularly by authorizing safe abortion in the cases listed in Article 14.2.c. In addition, the Maputo Plan of Action urges Governments to adopt legal policies and frameworks so as to reduce cases of unsafe abortion, as well as to develop and implement national action plans in order to mitigate the prevalence of unintended pregnancies and unsafe abortions. WHO reiterates that, if States do not remove the legal and administrative barriers that impede women's access to safe abortion services, they could not meet their international obligations to respect, protect, promote and implement the right to non-discrimination.

Article 14.2.c): the right to safe abortion in cases of sexual assault, rape, incest and when the pregnancy endangers the mental and physical health of the mother or the life of the mother or the fetus.

Rights covered:

31. The enjoyment of rights is non-discriminatory and grants gender equality when women are well informed of products, procedures and health services that are specific to them and when they actually have access to the latter, including in the area of family planning/contraception and safe abortion.

32. The right to be free from discrimination also means that women must not be subjected to criminal proceedings and should not incur any legal sanctions for having benefited from health services that are reserved to them such as abortion and post-abortion care. Furthermore, it entails that the health personnel should not fear neither prosecution, nor disciplinary reprisal or others for providing these services, in the cases provided for in the Protocol.

33. Article 15.1.b of the ICESCR states that every individual must benefit from scientific progress and its applications. Women see themselves denied the right to benefit from the fruits of this progress as soon as they are denied the means to interrupt an unwanted pregnancy safely, using effective modern services.

34. For women who have the right to therapeutic abortion services, being subjected by health care providers, police and/or judicial authorities to an interrogation on the reasons why they want to interrupt a pregnancy that meets the criteria listed in Article 14. 2.c) or being charged or detained for suspicion of illegal abortion when they seek post-abortion care constitutes a violation of their rights to privacy and confidentiality.

35. WHO recommends to the Member States to end the practice of extortion of confessions from women seeking emergency medical care as a result of an illegal abortion and to remove the obligation imposed by law to physicians and other health care providers to denounce cases of women who have undergone abortions. States are required to ensure, immediately and unconditionally, the treatment required for anyone seeking emergency medical care. UN human rights bodies have also condemned such practices which constitute a human rights violation.

36. Article 5 of the African Charter prohibits cruel, inhuman and degrading treatments, a prohibition reiterated in Article 4 of the Protocol. State parties must ensure that women are not treated in an inhumane, cruel or degrading manner when they seek to benefit from reproductive health services such as contraception/family planning services or safe abortion care, where provided for by national law and the Protocol.

The grounds for abortion stated in the Protocol

37. The Protocol provides for women's right to terminate pregnancies contracted following sexual assault, rape and incest. Forcing a woman to keep a pregnancy resulting from these cases constitutes additional trauma which affects her physical and mental health, as evidenced by the UN bodies responsible for ensuring compliance with the treaties, which advocate for women's access to therapeutic abortion in cases of pregnancy resulting from sexual assault.

38. Apart from the potential physical injuries in the short and long term, the unavailability or refusal of access to safe abortion services is often the cause of mental suffering, which can be exacerbated by the disability or precarious socioeconomic status of the woman. When assessing the risks to a pregnant woman's health, health must be interpreted according to the WHO definition, namely: "state of complete physical, mental and social well-being and not merely the absence of disease or infirmity". The reasons put forward by the woman seeking an abortion must be taken into account, and States are required to ensure that the legal frameworks in place facilitate access to medical abortion when the pregnancy poses a threat to the health of the pregnant mother. This implies notably that the evidence of prior psychiatric examination is not necessary to establish the risk to mental health.

39. The Protocol guarantees the right to terminate a pregnancy when the woman's life is threatened. Yet women's lives are in danger when they have no access to legal security procedures, which obliges them to resort to unsafe, illegal abortions. Maternal mortality from abortions performed in unhealthy conditions is a high risk, particularly for adolescent girls who seek to terminate pregnancies through unqualified or unspecialized service providers, or through abortions that are induced using dangerous procedures, products and objects.

40. Safe abortions may be required by women whose pregnancies pose risks to the life of the mother or the fetus. That is the case, for example, where it is demonstrated that the foetus which is developing suffers from deformities that are incompatible with survival, so being forced to carry the pregnancy to term would constitute cruel and inhuman treatment. This can also occur in women who need special medical treatment for heart disease

4th Annual meeting ACHPR/African Court, July 2015, Nairobi

www.ACHPR.org

[The Comment goes on in points 41-57 to outline the general and specific obligations of the State, including creating an enabling legal and political framework, which includes:]

provide a legal and social environment that is conducive to the exercise by women of their sexual and reproductive rights.
ensure that law practitioners, judges and magistrates and judicial police officers get adequate training and are sensitized on respecting and implementing the individual rights and the State's obligations guaranteed by the Protocol, so that women are not arrested, charged and prosecuted because they have sought safe abortion services or post-abortion care to which they are entitled.
measures facilitating access to family planning /contraception and safe abortion services, when provided for by law, should be realized by State parties including through: the establishment of accountability mechanisms; development of implementation standards and guidelines; a monitoring and evaluation framework, and availing accessible, timely and efficient redress mechanisms for women whose sexual and reproductive rights have been violated.
access to information, education, technologies and services, including safe abortion methods recommended by WHO,
avoid all unnecessary or irrelevant restrictions on the profile of the service providers authorized to practice safe abortion and the requirements of multiple signatures or approval of committees

58. ...In many African countries, there are not enough trained physicians available. Mid-level providers such as midwives and other health workers should be trained to provide safe abortion care. The training of health workers should include non-discrimination, confidentiality, respect for the autonomy and free and informed consent of women and girls.

62. ... State parties should allocate adequate financial resources for the strengthening of public health services so that they can provide comprehensive care in family planning / contraception and safe abortion. This includes making specific budget allocations under the health budget at national and local levels, as well as tracking expenditures on these budget lines. Information on health expenditures should be available to facilitate monitoring, control and accountability.

Compliance with the submission of periodic reports

63. State parties have an obligation, in accordance with Article 26.1 of the Protocol, to submit, in a timely manner, their periodic reports on the legislative and other measures they have taken towards the full realization of the rights recognized in the said instrument. The reports must take into account this General Comment and comply with the guidelines adopted by the African Commission for that purpose.