Millennium Development Goal 5 aims to reduce the level of maternal mortality by at least by 75 percent by 2015. Despite Malawi’s choruses on its wish to achieve this ambition one wonders how that will materialize as the country refuse to reform some of its restrictive laws that fuel maternal mortality. Freelance Journalist RICHARD CHIROMBO wonders why the ‘unborn known citizen’ is protected instead of saving a life of a dying woman.
Let’s face facts, in the case of abortions, the one who was supposed to be ‘principal witness’ is unknown being who does not even recognise the court’s jurisdiction and is unsure of its future and its own citizenship. Without a woman, it can not survive. Strangely, no matter what strong evidence a woman produces against that shadowy being called a foetus, the woman end up being convicted and eventually jailed.
What is the justification for jailing a woman because of the reproductive decision she has made to terminate her own pregnancy? The answer is the ‘shameful old story’ of Malawi’s excessive lust for ancient laws framed by the colonial masters in 1930s. Despite the fact that the major causes of maternal mortality are well documented, thus severe bleeding, infections, eclampsia, obstructed labour and unsafe abortions, as a nation we pretend to be too religious and too culturally compliant that discussion on liberalising abortion laws becomes a taboo,
For those women, who take a bold decision to seek abortion because of the health, social and economic challenges they face, the verdict is the obvious one of sending them to jail, thanks to the archaic law on abortion found in Sections 149, 150 and 151 of the Penal Code.
Astonishingly on podiums, those in power proclaim that we are a sovereign state, courtesy of the independence we attained in 1964 but the contents of the Penal Code is telling a different story. As far as draconian abortion laws are concerned in the Penal Code, Malawi is still in the colonial era.
The Malawi Congress Party regime simply adopted the same draconian abortion laws wholesale. The United Democratic Front regime was too busy with other things and forgot to review them. The Democratic Progressive Party is also not progressive enough to liberalise them and we still have what the colonialists left in the Penal Code intact.
But are women happy to have those restrictive abortion laws intact in the Penal Code.
“I believe time has come that we should be reviewing some of these laws which were framed by the colonialists. This is so because while Britain had these laws in early 1930s, they later reviewed them,” says Faustace Chirwa, executive director for National Women’s Lobby Group (Nawolg).
Chirwa adds: “As things stand, the woman can only terminate pregnancy if her life is in danger. We need to review them so that victims of brutal rape and incest can also access medical abortion. We should also consider the needs of HIV positive women.”
She contends that it is pathetic that the country forbids under-aged rape and incest victims to seek medical abortion ignoring the fact that their unplanned and unwanted pregnancy put their productive future into jeopardy as maintaining their pregnancy entails dropping out of school.
“What is painful is that because of the restrictive laws, once the girl dies for attempting to procure unsafe abortion, she becomes another statistic of sorrow,” says Chirwa.
She argues that the law on abortion is outdated and does not reflect changes in medical procedures and technology. She cites Section 243 of the Penal Code which permits medical practitioners to use surgical operations in inducing abortions, yet recent research and discoveries in medical field show that pills and other means can also effectively be used in hospitals to induce abortions.
The debate on abortion is always thorny when pro-life campaigners start equating foetuses to human beings, a position which pro-abortion campaigners rubbish.
“Surely it is a huge joke to lose a life of a woman in the name of protecting the interests of a foetus. If we are to reduce maternal mortality in this country, we have to start valuing the lives of women, instead of valuing the lives of fetuses more than those of women?” said one health worker in Blantyre.
He added: “The country is wasting millions of Kwachas in post abortion care because most girls and women are resorting to backstreet abortions. Thos who do not believe this, let them visit gynaecological wards, they would be shocked with the reality of the problem of abortion.”
The problem is further compounded by the fact that the Malawi Constitution does not even define when life starts.
Solicitor General Anthony Kamanga in an interview could not say when life starts by simply saying: “I don’t want to do the research for you on that issue. Find out. Some say at conception, others have a different view.”
Asked to comment on the issue of abortion, all Kamanga said was: “I know that the issue of abortion is a topical one. However, I do not want to be drawn into the debate. Let others debate it.”
While Kamanga says people are free to debate abortion laws, the Immigration Department says it does not treat foetuses as citizens of Malawi.
“I have never heard of a case of a pregnant woman trying to process a passport for what is in her womb. I believe this is so because that is not stipulated in the laws. Perhaps the judiciary can have answers on that when such an incident will occur,” says Peter Kakatera, public relations officer for the Immigration Department.
The Citizenship Act stipulates the grounds for one to become a Malawian citizen. These include citizenship by birth, by descent, by marriage, by registration, by conferment, and dual citizenship of minors.
Says Kakatera: “Citizenship by birth means the time we can actually see the child.”
In traditional setting issues of abortions and still births are “women matters,” and traditional leaders do not deal with abortion cases.
Noel Msiska, coordinator for the Primary Justice Programme in Mwanza, acknowledges that “ever since we started running the programme some four years ago, we have never had chiefs settling abortion issues. Those sexual reproductive issues are treated as women issues.”
A traditional leader in Neno, Chekucheku says while abortion is criminalised, consideration should be given to rape and incest victims.
“As a traditional leader, my experience is that children born out of rape and incest incidents suffer from community prejudice. This affects their self-confidence; in a sense they are like obscure members of society.
“Secondly, we should also know that these children do not use their real surnames because the rape victims don’t know the rapists. This is the same as adopting false identities and living a lie,” says Chekucheku.
Chekucheku acknowledges that as a traditional leader he has never resolved a case bordering on abortion.
“I think you should appreciate that in our culture, issues of women’s sexual reproductive health, be it pregnancies, abortions, miscarriages, still births are dealt by elderly women. I don’t see any logic in men who do not become pregnant making decisions, laws, rules and regulations about women’s sexuality. Let’s respect our elderly women to deal with that. We believe that in our culture, here.”
While Chekucheku firmly believes that according to their traditional culture women should deal with issues of their sexuality including those on abortions, miscarriages and still-births, the colonial law in the Penal Code which fails to appreciate that with limited access to contraceptives and safe abortion, women and girls have no option but to resort to unsafe abortions still screams – Prison sentence for those who procure and help to procure abortions except in a circumstance where a physician certifies.
Sections of the Penal Code that criminalise abortions do not only threaten Malawi’s attainment of Millennium Development Goal Number 5 but also mocks all the protocols and treaties that the country has signed on sexual reproductive health and women’s rights.
As a signatory to the Maputo Plan of Action which commits our government to address death and injury from unsafe abortion by taking action to “enact policies and legal frameworks to reduce the incidence of unsafe abortion,” one wonders why to date, gynaecological wards are full of patients with complications resulting from unsafe abortions. This article first appeared in The Rolling Times of Malawi.
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