A call to save some women’s lives
Background Information to the T.O.P Bill
Religious Leaders Network for Choice conducted independent research on the circumstances that led the Republic of Malawi through the Ministry of Health to propose for the review of the current laws guiding termination of pregnancy. One of the documents that was consulted is the Law Commission Report Number 29 dated 15th March 2016 entitled: Report of the Law Commission on the Review of the law on abortion.
In the introductory remarks of this report, the chairperson of the Special Law Commission on the review of the termination of pregnancy clearly gives background information leading to the process which we find very important to include as an introduction to this statement.
For a long time, Government has bemoaned the high prevalence of maternal mortality in Malawi and has identified unsafe abortion as one of the major contributing factors to this problem. Termination of pregnancy, except where it is performed to save the life of a pregnant woman, is a criminal offence in Malawi.
In this regard, some commentators have faulted the restrictive law on abortion and the criminal sanctions that follow as contributing factors to the problem of unsafe abortion in Malawi apparently because women, for fear of the law, resort to clandestine and unsafe means in order to terminate unwanted pregnancies. Such commentators, including the Ministry of Health, called for a review of the law on termination of pregnancy.
To that effect, a special Law Commission was appointed under section 133 of the Constitution to carry out the necessary law reform work on the law on termination of pregnancy. Membership of the Commission comprised representatives from the Ministry of Health, the Judiciary, the Catholic Church, Malawi Council of Churches, Muslim Association of Malawi, Traditional leaders, the Law Society, Ministry of Justice and the Malawi College of Medicine. We leave it to the members of the press and Malawians at large to check and verify the names of these representatives who took part in the consultations and proposing the grounds on which termination of pregnancy can be allowed in Malawi by simply visiting Google and search for, The Report on the Review of Pregnancy Termination Law.
It is reported that the special Law Commission had a difficult task before it as it was dealing with an emotive subject that attracts mixed reactions and perceptions from different quarters depending on the angle from which it is perceived, that is, from a legal, public health, moral or religious standpoint. However, in arriving at its findings and recommendations, the Commission conducted a thorough desk research on the subject matter, undertook a programme of consultations both locally and abroad, and deliberated at length in plenary. Among others, the Commission considered the Government policy on abortion, the law as it stands now, applicable international instruments, the magnitude of unsafe abortion in Malawi and views from various stakeholders such as the faith community, Ministry of Health, medical practitioners, health regulatory authorities, Ministry of Education and the general public.
The diverse group of Commissioners on the programme and the methodology that they employed greatly enriched the process and it is the hope of the Commission that this allays any fears that the public might have to the effect that the work of this Commission may have been somehow compromised.
In line with its mandate, the Law Commission reviewed the law on abortion pursuant to the proposal made by two special Law Commissions. First, a special Law Commission on the Review of the Penal Code which released its Report in 2000 recommended the enactment of a separate law that would make provision for the procedure relating to the legal termination of pregnancies on appropriate grounds. Second, a special Law Commission on the Development of the Gender Equality Statute which released its Report in 2011 made a recommendation to Government to carefully scrutinise the issues of unsafe termination of pregnancy and make immediate plans to institute a review of the law on abortion through the Ministry of Health so that a new statute specifically on termination of pregnancy is enacted.
Following these recommendations, the special Law Commission on the Review of the Law on Abortion was empanelled under section 133 of the Constitution to carry out the review. The Commission commenced its plenary meetings in June 2013.
The general mandate of the Commission was to review the law on abortion to ensure conformity with the Constitution, Government policies and applicable international laws.
Current legal provision on Termination of Pregnancy
The Religious Leaders Network for Choice further researched on the current legal provision on the termination of pregnancy and found that this is provided in the Penal as cited below.
The Penal Code
The law on abortion is governed by the Penal Code. Generally, sections 149, 150, 151 and 243 of the Penal Code prohibit termination of pregnancy and the only exception for allowing it is where the life of the mother is threatened.
Section 149 prohibits the act of procuring the miscarriage of a woman
through the unlawful administration of any poison, noxious substance or the use of force. It applies to third parties where they assist a woman to procure an abortion. This section has a wide scope of application and potentially encompasses legitimate health care providers and other third parties who provide services that result in the procurement of miscarriage of a woman. The third party committing the act of procuring the miscarriage must do so with an intent to do the act and it is irrelevant whether the woman on whom the act is performed is in fact pregnant or not. In effect, this provision covers attempted abortions; and ignorance of the fact that the woman was actually pregnant or not is not a defence. The offence committed is a felony and attracts a penalty of 14 years imprisonment. The offence attracts a penalty similar to offences which result in serious bodily harm being caused to others such as grievous bodily harm under section 238 of the Penal Code and maliciously administering poison under section 240 of the Penal Code.
Section 150 applies to a pregnant woman herself and proscribes the act of procuring her own miscarriage through the administration of poison, noxious substance and the use of force. The offence committed is a felony and although this too is a serious offence, it attracts the penalty of 7 years imprisonment. The penalty is less compared to instances where the offence is committed by a third party.
Section 151 deals with the means used to procure an abortion. The provision proscribes the supply of drugs, instruments or anything that is intended to be unlawfully used to procure the miscarriage of a woman. The offence committed is also a felony but attracts a lesser penalty of 3 years imprisonment.
The effect and scope of application of this particular section is similar to section 149, in that it may also encompass health care providers as well as any other persons or category of persons that assist the woman in procuring an abortion.
Although these sections make abortion illegal, section 243 provides a statutory defence for health care providers conducting surgical operations in good faith and with reasonable care, where the operation will preserve the mother’s life.
An operation of this nature may only be performed if doing so is reasonable, having regard to the patient’s state at the time, and to all the circumstances of the case. The defence is rather limited in scope as it can only be applied with certainty to registered health care providers and to surgical abortion only omitting medical abortion
Grounds upon which Termination of Pregnancy can be allowed
Our research as a Network, further found that on the basis of its recommendation that termination of pregnancy should only be allowed in certain instances, the Commission proceeded to identify and
consider the following grounds as justifying the termination of pregnancy:
(a) where the continued pregnancy will endanger the life of a pregnant woman;
(b) where the termination is necessary to prevent injury to the physical or mental health of the pregnant woman;
(c) where there is a severe malformation of the foetus which will affect its viability or compatibility with life; and
(d) where the pregnancy is as a result of rape, incest or defilement.
A full explanation on each of the proposed grounds is well provided in the quoted report and we leave it to the members of the press and Malawians at large to read the report which can be accessed on the internet as alluded to earlier on. Suffice to mention here that the Commission was aware that some laws regulating the issue of termination of pregnancy are more liberal than what the Commission was proposing but still felt that the law in Malawi should allow termination of pregnancy only on these specific grounds. The Commission reached this decision after taking into account divergent views and notable society perceptions against termination of pregnancy.
We further found out that Special Law Commission proposal grounds on which abortion should not be allowed in Malawi being; contraceptive failure, abortion on demand, on ground of socio-economic reasons and any other grounds apart from the four proposed grounds.
Theological basis upon which the proposed grounds were endorsed by the faith leaders sitting in the Commission
In order to understand why our esteemed theologians sitting in the Special Law Commission on the review of pregnancy laws indorsed the proposed grounds, we also did a comparative study on world religions to find out what they teach on the issue of abortion. Our study revealed that although there is no explicit mention of abortion in any Holy Book of religion, all dominant world religions forbid abortion on the basis of killing, since termination of pregnancy is perceived as killing the unborn baby. However, we also found out that all dominant world religions accept that women, at times, may face exceptional circumstances that present serious moral or medical dilemmas leading the faith community to accept abortion as a remedy. These circumstances are:
1. Therapeutical grounds: World religions justify abortion on this ground when there is evidence beyond reasonable doubt that the pregnancy poses serious threat of death to the woman if she continues carrying the pregnancy. An example of such cases is where the pregnancy is developing outside the uterus and can not naturally come to term but it can hurt and harm the woman if it is left to keep developing in the fallopian tube.
2. Eugenic grounds: World religions justify abortion on this ground when there is evidence beyond reasonable doubt that what appears to be developing as a foetus in the womb of the woman shall not actually become a human being upon delivery. An example of such cases is where scans have shown that what is developing in the womb of the woman is merely a stone or something that will not survive as a human upon delivery.
3. Conception without consent as in rape and defilement: World religions justify abortion on this ground based on the teaching that rape and defilement are evils whose perpetrators should be punished by death trough stoning. The woman’s body just like them man’s is the temple of the Holy Spirit and should not be subject to violent intrusion which does not bring moral birth right to the embryo. Children should be born in properly constituted marriages and if possible officiated by the clergy.
4. Conception resulting from incest: World religions justify abortion on this ground based on the same teaching that incest is evil and no children should be born out of such relationships.
We understand from the research conducted that every individual representing his/her faith group made supplications of their individual denominational teachings which were later considered to form the proposed grounds on which abortions should be allowed in Malawi. We further understand that the framers of the bill included all the diverse teachings of religion in the spirit that Malawi is a multi-denominational country which does not appeal to one religious teaching on matters of morality. It was against this background that the proposed grounds were endorsed by our fellow esteemed theologians sitting in the commission who agreed that it will be up to particular denominations to teach what they perceive justified while allowing Malawi as a country to have a law that takes into considerations diverse teachings from different faith groups in Malawi.
Our call to the esteemed Members of Parliament
We would like to call upon our esteemed members of parliament to consider tabling the proposed pregnancy termination bill within the current sitting of parliament and pass it into law. As clearly alluded to above, the proposed bill is a result of extensive consultations that took place from 2013 to 2016, consultations which were led by diverse professionals including faith leaders from different religious mother bodies who represented their affiliates.
We would like to call upon our members of parliament to consider this as a sexual reproductive and health rights issue which mainly concern women who are at times faced with moral as well as medical dilemas. We are of the view that the call from the ministry of health prior to 2013 to review the current laws guiding termination of pregnancy did not come out the vacuum but that health professionals were convinced beyond reasonable doubt that unsafe abortion is a serious cause of death among women who could be saved if an alternative law was passed.
We would like to further call upon those religious mother bodies that were represented in the special law commission which made recommendations as explained above to rise above denominationalism and allow our esteemed parliamentarians to deliberate and pass the bill into law without undue interference considering the fact that this is their own bill which they took part to draft through the report that they endorsed in 2016 and above that, this is a proposed bill which if passed into law will save a certain group of women who should be given a second chance rather than condemning them to early preventable death.
In conclusion, for our esteemed parliamentarians, we would like to retaliate the fact that as a constitutional Republic, Malawi has the obligation to provide basic needs to its populace in light with Natural Justice to ensure that its people enjoy full access to their rights here on earth and that Sexual and Reproduction Health and Rights is one of such rights.
Let us join hands and save those women who are faced with moral and health dilemma as they make moral decisions. Condemnation is not welcome in the community of love.
Let us join hands to give these women a second chance to conceive normally and by choice.
Rev. Fr. Martin Bob Kalimbe: Chairperson
Sheikh Dr Imuran Shareef Mahommed: Board Member
Rev Cliff Nyekanyeka: National Coordinator
Issued on 24th day of November in the year 2022 in Lilongwe, Malawi