The Malawi High Court has allowed girls who are victims of sexual violence and rape to access safe abortion services.
This follows action by a brave 14-year-old girl, identified in court as AC for legal and ethical reasons, who took legal action against the Ministry of Health for being denied the services, after being raped in 2022.
The girl also sued a clinician at Chileka Health Centre who refused to provide the service.
AC argued that by denying her the services, the clinician breached Section 19 (1) of the Gender Equality Act [Cap. 25:06] (“GEA”) which guarantees the claimant the right to adequate sexual and reproductive health which includes the right to access sexual and reproductive health services which includes safe and legal termination of pregnancy.
In his ruling, Justice Michael Tembo agreed with the girl, holding the Blantyre District Council responsible for the clinician’s actions and faulted the Ministry of Health for lacking clear guidelines on safe termination of pregnancy for minors impregnated through sexual violence.
The court ordered the Ministry to amend the Post-Abortion Care Guidelines within 180 days to ensure access to safe abortion services for such cases.
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,
“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,” reads part of the ruling.
In an interview, Nyale Institute of Reproductive Health executive director Godfrey Kangaude has welcomed the ruling, saying it’s a very good development for girls who are victims of 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. Further, the court has asked duty bearers to take action to ensure that the Gender Equality Act is implemented.
“We must thank this girl for her bravery to take such action. There are a lot of girls who have suffered the same, but they were reluctant to take action,” he explained.
Malawi’s abortion laws are a legacy from British colonial rule. Although the country gained independence in 1964, it still upholds several colonial-era laws, including sections 149-151 of the Penal Code, which prohibit attempts to procure an abortion except when the woman’s life is in danger.
Specifically, Section 149 states that anyone who attempts to cause a miscarriage through “administering poison, using force, or any other means” shall be “guilty of a felony and liable to imprisonment for up to fourteen years.” Section 243 allows surgical operations only if they are necessary to save the life of the mother.
Section 150 of the Penal Code stipulates that anyone who unlawfully procures, administers, or aids in an abortion is “liable to seven years” in prison. Section 151 imposes a three-year jail sentence on “anyone who supplies commodities” for illicit abortion.
Malawi’s government has long planned to change these laws. In 2012, then-President Joyce Banda appointed a Special Law Commission to review the old laws, following a request from the Ministry of Health aimed at reducing pregnancy-related deaths.
The commission, comprising doctors, lawyers, faith leaders, and chiefs, evaluated local evidence and policies in conjunction with international treaties, and visited several African countries for guidance.
After nationwide consultations and a thorough analysis of the situation, the commission in 2015 recommended expanding the grounds for legally permissible abortion.
If passed, the proposed Termination of Pregnancy Bill would grant women the right to seek an abortion (1) if the pregnancy results from rape, defilement, or incest; (2) to preserve their physical and mental health; and (3) if the fetus is severely malformed.
