BLANTYRE, Malawi
The High Court of Malawi has determined that women and girls who have experienced sexual violence are entitled to obtain safe abortions in both public and private healthcare institutions without any obstacles, in accordance with Section 19 of the Gender Equality Act.
The judicial decision follows a case in which a minor filed a lawsuit against a healthcare provider, a medical facility, and the Ministry of Health for infringing upon her sexual and reproductive health rights, as she was initially denied access to a safe abortion after being subjected to rape.
“This Court has no doubt in its mind that a purposive interpretation of section 19 of the Gender Equality Act entails the following. That a girl victim of a sexual offence who is pregnant as a result of such an offence definitely has a right to seek an abortion automatically upon indications that she had become pregnant as a result of a sexual offence being perpetrated on her,” said, High Court Judge Michael Tembo in his ruling.
The judge ruled that the clinician violated Section 19 of the Gender Equality Act by refusing to offer the minor who became pregnant after being defiled.
“It is harsh and inhumane to insist that such a girl keep the pregnancy in such circumstances. 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 upon exercise of her free will, access to abortion services so that her life be preserved from ruin by either mental or physical challenges associated with such an unwanted challenges associated with such an unwanted pregnancy,” ruled the judge.
According to the ruling, girls and women who become pregnant as a result of sexual offences, automatically qualify for access to safe abortion in line with Section 19 of the Gender Equality Act.
“The claimant herein is no exception. At the material time, she was automatically entitled to an abortion as a victim of a sexual offence, in exercise of her right to access sexual and reproductive health rights under section 19 (1) (a) and 19 (2) of the Gender Equality Act,” the judge ruled.
In his ruling, he stated that the Gender Equality Act was enacted specifically to safeguard the sexual and reproductive health rights of individuals.
He criticized the clinician for refusing to provide a safe abortion, emphasizing that the clinician focused solely on the physical health of the raped girl, neglecting her mental health. “Regrettably, the 1st defendant (clinician) only examined the claimant’s physical health relative to the pregnancy but did not record any examination of her mental health to determine associated risks,” he said.
The Court made the ruling on Tuesday in Blantyre following a case of a minor who sued a clinician at Chileka Health Centre; the Blantyre District Council, the Minister of Health for failing to provide her with safe abortion when she was raped.
The ruling has also ordered the Ministry of Health and the Malawi Human Rights Commission to create conducive environment for victims and survivors of sexual violence to access safe abortion.
Reaction
Meanwhile Nyale Institute of Reproductive Health has welcomed the ruling calling it historic and progressive.
“This is the first ruling in Malawi to confirm that the Gender Equality Act 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 the Gender Equality Act,” explained Dr Godfrey Kangaude, the Executive Director of Nyale Institute.
The Institute has called upon the Ministry of Health and the Human Rights Commission to urgently implement the Court’s directives by updating the national guidelines, training health workers, and strengthening accountability across the health system.
“We also commend the courage of the young girl and her family, for taking on a matter of being refused to be provided with abortion care to court when others shy away from from claiming such rights,” he said.
The Case
The Court issued its ruling on Tuesday in Blantyre regarding a case involving a minor who filed a lawsuit against a clinician at Chileka Health Centre; the Blantyre District Council; and the Minister of Health for their failure to provide her with a safe abortion following her rape.
The ruling also mandated the Ministry of Health and the Malawi Human Rights Commission to establish a supportive environment for victims and survivors of sexual violence to access safe abortion services.
In this case, the minor claimed that in or around November 2022, during a voluntary counseling and testing session at her school conducted by a non-governmental organization, it was revealed that she was one month pregnant.
Upon inquiry from her parents, she disclosed that a man from her village was responsible for her pregnancy. The man was subsequently arrested on charges of engaging in sexual intercourse with a minor (the girl was 13 years old at the time, which constitutes an offense under the Penal Code as per section 138).
Following a complete trial, the Chisenjere Magistrates' Court found the accused guilty and sentenced him to 14 years of imprisonment with hard labor, which he is currently serving.
Nevertheless, the girl continued to be pregnant and faced ostracism from her peers, which hindered her ability to focus on her studies, ultimately leading to her dropping out of school. Additionally, she experienced both physical and mental health issues as a result of the pregnancy.
In January 2023, the girl and her parents sought assistance at Chileka Health Centre, a one-stop facility. They consulted with the clinician there and requested a termination of the pregnancy, citing the danger it posed to the girl's life and health.
The clinician, however, declined to perform the termination, asserting that he did not perceive any immediate threat to the girl's life and expressed concerns about the legal ramifications, as he believed the law prohibited him from providing termination services for pregnancies.
He just referred the girl to social welfare who identified a foster home for her and also he counselled the girl to accept that she would carry the pregnancy to full term.
The girl later sought a second opinion from a specialist gynaecologist at Queen Elizabeth Central hospital where the pregnancy was safely terminated after the specialist assessed that the pregnancy was a danger to the girl`s health and life.
The girl brought an action against the defendants claiming damage and loss for the decision to deny her safe abortion services.
Solution
The ruling is a huge relief to many girls and women who now will be accessing safe abortion after experiencing sexual offences.
It re-enforces the quest by the Ministry of Health to have new laws of abortion in Malawi as evidenced by the request it made to the Ministry of Justice to have a Termination of Pregnancy (T.O.P) Bill enacted.
The Ministry of Justice through the Law Commissioned already drafted the T.O.P. Bill but it awaits debate and eventual enactment by lawmakers.
Malawi is one of the countries in Africa with high magnitude of unsafe abortion. Over 141,000 women and girls in Malawi procure abortion and unsafe abortions are one of the leading causes of maternal deaths in the southern African nation of about 20 million people.
