Elections Eclipsing Safe Abortion Rights
For most MPs, supporting the ToP Bill could be a risky political move, especially with the 2025 elections on the horizon.
LILONGWE, Malawi-As Malawi joins the commemoration of international safe abortion, under the theme #AbortionSolidality, this is the last one before Malawi gets busy with tripartite polls. JOSEPHINE CHINELE analyses how MPs have failed to uphold women's rights.
On Thursday, March 11, 2021, anxiety gripped interested parties as the highly contentious Termination of Pregnancy (ToP) Bill was set to be debated in Parliament.
For the first time, the Chairperson for Parliamentary Committee on Health, Dr. Matthews Ngwale was to propose the ToP deliberation as a private members’ motion.
Earlier, March 2, 2021, Youth activists, She Decides, had already pressured the parliamentarians to support the Bill.
But parliament unanimously rejected a motion to debate the ToP Bill, promoted by Sexual Reproductive Health and Rights (SRHR) advocates for about a decade now.
In Malawi, abortion is legal but restrictive. Section 243 of the Penal Code requires health workers to perform surgical abortions only when a woman's life is in danger. In the presence of these restrictive abortion laws, Malawi is registering high unsafe abortion cases. This contributes to 17 percent of Malawi’s high mortality rate, which is at 349 per every 1,000 live births—one of the highest in the world.
No wholesale abortion
The ToP Bill seeks to address this, through the addition of more grounds to termination of pregnancy, including; in circumstances where it is to prevent injury to the physical or mental health of the pregnant woman, where there is severe malformation of the fetus which will affect its viability or compatibility with life and where the pregnancy is as a result of rape, incest or defilement. In all these circumstances, according to the proposed law, there would be a requirement of a police report of not more than four months.
According to the ToP Bill, the inclusion of these grounds does not mean making abortion available to women wholesale, as there will be procedures to be followed, including that the minister of health have overall powers to prescribe regulations on standards of facilities to perform safe abortion. It also highlights that counselling will be provided before and after procedure, including family planning.
Additionally, the ToP guidelines allow health practitioners who are not comfortable to perform safe abortion to recuse themselves.
It also states that providing false declaration for rape, defilement and incest is an offence punishable by five years imprisonment whilst forcing a woman to do abortion will be punishable by 14 years imprisonment.
Mis-understanding
Understanding the contents of the ToP Bill has been hard for anti-choice movements, mainly led by religious groupings, who have described abortion as killing, in their consideration that life begins at conception. This has had a great influence on having the ToP Bill deliberated on and passed into law.
SRHR advocates note that access to safe abortion remains a contentious issue that even divides the activists themselves. They say the topic of law reform of restrictive and punitive abortion laws continues to be met with resistance in most East and Southern African (ESA) countries, where nations choose to invest in post-abortion care instead.
Access to safe abortion is legal under very stringent circumstances in most countries in ESA, except South Africa and Mozambique, where safe abortion can be accessed on demand. Malawi, like the majority of the countries in ESA does not fully recognise the right to bodily autonomy for women.
Retrogressive
Although the Malawi Parliament has been retrogressive in its approach, the country was one of the first to sign and ratify the Maputo Protocol, which outlines the importance of protecting women’s rights. Particularly important to the role of parliamentarians is Article (14), which highlights a comprehensive political commitment to ensuring that the right to health for women, including SRHR, is respected and promoted.
“Denying women the right to make decisions about their bodies is an act of defying the provisions of the protocol,” says AIDS and Rights Alliance for Southern Africa (ARASA) Regional Advocacy Lead, Thuthukile Mbatha.
For most MPs, supporting the ToP Bill could be a risky political move, especially with the 2025 elections on the horizon.
But Mbatha believes it is critical to constantly remind parliamentarians of their respective roles in the promotion and protection of human rights, including reproductive rights, “Moreover, it's important to prioritise the needs of citizens, including women’s reproductive needs, regardless of one’s interests and beliefs.”
“There is a fear of losing voter support. This fear of alienating religious leaders and voters creates hesitation among parliamentarians,” notes Caroline Mvalo, Executive Director for Centre for Conflict Management and Women Development Affairs (CECOWDA).
She says the withdrawal of the Bill from discussion (in 2021) indicates a deep divide on the issue, and with elections looming, it may be difficult to secure legislative progress without significant shifts in public and political sentiment.
“Many MPs remain reluctant to engage with the issue, and religious opposition continues to be a major barrier,” she says.
Chairperson for the Parliamentary Women’s Caucus, Rachel Zulu acknowledges that largely MPs cannot approve this Bill because of their faith affiliations.
“If people are not ready, who I’m I to say yes? I’m also saying no. This one was rejected by Malawians and you know it.…,” she says.
Fear of the unknown
Given the political climate and the upcoming 2025 elections, it is unlikely that the Bill gain enough progress and momentum. This means that, in six years of office, the current crop of MPs has failed to spearhead women's SRHR.
“There is a degree of fear of the unknown among MPs when it comes to the ToP Bill. It stems from cultural and religious concerns, where many MPs in Malawi come from deeply conservative and religious backgrounds,” Mvalo observes.
Zulu denies that MPs fear the unknown but rather go by what their constituents tell them to do, saying on this law, Malawians and faith leaders are not ready to legalise the provision of safe abortion, “Once they are ready, this law will be passed. If people on the ground are not ready, who are we to pass this law?”
No regrets
Although his attempts were frustrated in March 2021, Dr Ngwale says he has no regrets about having been at the helm of having the ToP discussed in Parliament.
“I did this with all my mind. This is about rights, fairness and choice. Yes I’m a man I can’t get pregnant, but I believe those disadvantaged women and girls need to have safe abortion options out there,” he says.
He confidently admits that his move has garnered more MP support and led to more sensitisation campaigns on ToP to communities, in an attempt to have people understand the contents of the Bill, other than perceptions that safe abortion is killing.
After he expressed interest in presenting the ToP motion, Ngwale became a topic of discussion amongst his fellow parliamentarians, “They mocked and made fun of me…I didn’t mind because I did this from an informed point of view. Very few have read the special law commission recommendations...Today many have offered to support the ToP Bill.”
Dr Ngwale is hopeful that one day, the Malawi Parliament will grant women the right to safe abortion in line with the set guidelines as stipulated in the Bill.
Meanwhile, the ToP Bill continues to gather dust as it lies at the Ministry of Justice, whilst women and girls are forced into dangerous and clandestine abortions.