Abortion rights in African countries
By Abbas Badmus

The recognition of a right to abortion can often be the first step towards creating an enabling environment for women and girls to access abortions but in some countries in eastern and southern Africa, women and girls continue to face barriers to accessing abortion.

The right to abortion has been catapulted into the spotlight by Dobbs v Jackson, the landmark judgment of the United States (US) Supreme Court that overturned Roe v Wade – a 49-year-old precedent of that court that first recognised the constitutional right to abortion in the US.

With the US Supreme Court finding that the right to liberty in the US Constitution did not include the right to abortion, we consider the legal protection of the right to abortion in countries closer to home. South Africa with arguably the most liberal abortion rights on the continent where access is nevertheless still a problem, Namibia for its inherited restrictive abortion legislation that has since been repealed in South Africa, and Uganda for its expressed constitutional restriction of abortion.

Internationally, in a human rights context, reproductive rights like maternal healthcare enjoy somewhat universal recognition, however, abortion care still lags behind. This is mainly because abortion is often not seen as a basic healthcare service and reproductive right that should be available to women and girls.

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003), (also known as the Maputo Protocol) is a robust and progressive regional human rights instrument that recognises women and girls’ rights to sexual and reproductive health. It is the first international human rights instrument that explicitly mentions abortion as a human right. In article 14(2)(c), it states that women in member states have the right to medical abortion in cases of sexual assault, rape, incest, and where the pregnancy endangers either the health of the woman or girl or the life of the woman, girl or the foetus.

Uganda, Namibia, and South Africa all ratified the Protocol.

On ratifying the Maputo Protocol, Uganda, however, registered a reservation to article 14(2)(c). Uganda stated that it was not bound by the article unless it enacted domestic legislation making provision for this right. South Africa and Namibia registered no reservations to this article.

Abortion in South Africa

When it comes to access to abortion in South Africa, the battle has both been lost and won on some fronts. The country has a solid constitutional and legal framework that provides for safe abortion services. However, due to failures in implementation, access to abortion continues to elude women and girls and in many ways, the right to abortion is negated in this country.

Abortion in Namibia

The Namibian Constitution does not entrench the right to health. There are, however, other constitutional rights from which the right to abortion can be inferred, like the right to liberty and human dignity. Although Namibia has ratified international treaties to promote women’s rights to sexual and reproductive health, the country has not made progress when it comes to addressing access to abortion.

Currently, the Abortion and Sterilisation Act, which has since been repealed in South Africa, continues to be in force in Namibia. The country’s prevailing legislation regulating abortion was inherited before it became independent from South Africa in 1990. The Act restricts abortion to circumstances where the pregnancy seriously threatens a woman or girl’s life or health; there is a severe foetal anomaly; or where there has been rape, incest, or otherwise unlawful sex.

Abortion in Uganda

The Ugandan Constitution protects the right to life and it expressly provides that no person has the right to terminate the life of an unborn child except as may be authorised by law. To date, no such law has been enacted.

The only law on abortion in the country is that which criminalises it. Uganda’s 1950 Penal Code Act, a remnant of its colonial past, criminalises attempts to get an abortion, facilitating a miscarriage, and the supply of drugs intended to procure abortions (with penalties of imprisonment of up to 14, seven, and three years, respectively).