ABORTION FOR WHO? TO LEGALISE OR DECRIMINALISE?
17 April 2024 by Seabata Makoae (He/Him)
Est Read Time: 6 min(s) 53 sec(s)
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One of the debates that must be added to the tapestry of a feminist discourse and the gender agenda is the legislative and policy provisions for access to abortion services in Lesotho. This discourse proposal is for those who advocate for the full access to justice and health services, while maintaining a comfortable silence under the banner of religion and political expediency.
In this article, I intend to show, firstly, that the current legal framework in Lesotho is not responsive to the health needs and social challenges that are faced by women as survivors of Gender Based Violence (GBV), and that it leads to an indisputable exposure of women to criminality. Secondly, that it is too restrictive, thus, precipitates many backstreet abortion procedures where women suffer irreparably and sometimes die.
Thirdly, that the law, as it is now, is discriminatory in that the crimes that accrue from it are gendered in nature; in that they carry only a woman’s face. Sadly enough, lastly is that the law places too much power in the hands of the authorities to police a female person’s body, thus, depriving women of their bodily autonomy.
The Protocol to the African Charter on Human and People’s Rights (ACHPR) on the Rights of Women in Africa, commonly known as the “Maputo Protocol”, is heralded as a living document for women’s human rights in Africa. It is a key reference point in this context. This document, signed by Lesotho in February 2004 and ratified in October of the same year, remains the most progressive legal document in the advancement of women’s rights in Africa.
Key to its founding principles is the elimination of discrimination against women. Article 2 of the Protocol clearly elucidates that; “discrimination against women is any action preventing a woman from enjoying all the rights recognised to all human beings and in all fields because of her sex.”
Article 14 of the same protocol makes provision for state parties to authorise access to medical abortions under certain conditions e.g., “rape, incest, forced sexual relations, or when continuing with the pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.”
In the same light, the legal provision for access to abortion services in Lesotho is surrounded by conditions that are more or less similar to those in the Maputo Protocol. Both the 2010 Penal Code and the 2022 Counter Domestic Violence Act (CDVA) have provisions for medical abortion on conditions that the survivor was raped, or that the pregnancy is a result of incestuous intercourse.
The Penal Code, under Section 45, makes provision for a defence against a charge of performing abortion if such pregnancy posed a risk of “…significant harm to the health of the pregnant female person…” and “…in order to prevent the birth of a child who will be seriously physically or mentally handicapped….”
A glaring omission is that neither legislation makes provision for the exception of “when continuing with the pregnancy endangers the mental and physical health of the mother….” The closest reference is where abortion is intended to “prevent significant harm to the health of the pregnant female person….” However, these two statements do not mean the same thing. They have been the subject of a great deal of debates and personal biases in their interpretation. This is because the latter provision is framed in an obscure and ambiguous manner.
What becomes a matter of contention, and should be of particular interest to the advocates of safe abortion, is the little generous provision of the Maputo Protocol against a more restrictive legislative environment in Lesotho which, therefore, necessitates advocacy for a more liberal policy on access to abortion as a health service more than a legal service.
Additionally, yet disappointing, is that the Protocol gives power to the authorities to “…authorize access (for women) to abortion services….” This, therefore, means that the power, of women, to attain safe abortion services rests in the hands of authorities. Invariably, such access may be denied, or legal and structural hurdles placed thereto, through lengthy and inaccessible procedures for those who need safe medical abortions.
The little generosity that is provided in the protocol includes the mental and physical health of the expectant mother. Yet, the CDVA and the Penal Code make no such provisions in favour of the pregnant female person. In practical terms, this means that the mental health status of the mother, and the potential adverse and significant physical harm to the mother in carrying out the pregnancy, are not a justification for a medical abortion in Lesotho.
Another nagging question in this discourse is that of spousal rape. One wonders if the provisions under both the Maputo Protocol and the two legal pieces in Lesotho accommodate rape that occurs between married couples, as a condition for abortion and, if so, what procedures are required to legally accord or authorise access to abortion in such circumstances. This is in cognisance of the provisions of the law in Lesotho that prescribes conditions under which a woman may claim rape against her spouse.
What the feminist movement all over the world supports, and which is elaborated by Marge Berger (2017) of the International Campaign for Women’s Right to Safe Abortion, is a more liberal approach.
“… to achieve the right to safe abortion, advocates will need to study the political, health system, legal, juridical, and socio-cultural realities surrounding existing law and policy in their countries, and decide what kind of law they want (if any). The biggest challenge is to determine what is possible to achieve, build a critical mass of support, and work together with legal experts, parliamentarians, health professionals, and women themselves to change the law—so that everyone with an unwanted pregnancy who seeks an abortion can have it, as early as possible and as late as necessary.”
She-Hive Association in Lesotho has taken this debate to the public by engaging the general public on their perceptions on the decriminalisation of abortion. The position taken by this women-led organisation seeks to have a much more ultra-liberal feminist position in a deeply patriarchal society with entrenched Christian values. In simple, and more direct terms, She-Hive Association seeks the decriminalisation of abortion by removing criminal sanctions against abortion from the law, and changing the law and related policies and regulations to achieve the following:
- not punishing anyone for providing a safe abortion;
- not punishing anyone for having an abortion;
- not involving the police in investigating or prosecuting the provision or practice of safe abortion services;
- not involving the courts in deciding whether to allow an abortion; and
- treating abortion like every other form of healthcare—that is, using best practice in service delivery, the training of providers, and the development and application of evidence-based guidelines, and applying existing law to deal with any dangerous or negligent practices.
The arguments that are advanced in favour of this liberal position must appeal to everyone, because the current legal environment predisposes women to criminality in victimless crimes. ‘Victimless’ because the foetus is regarded as part of a woman’s body and that the right to life, and all other rights, start at birth. This viewpoint is contained and supported by the Universal Declaration of Human Right (UDHR)s, which is the foundation of human rights and insists on the “right to life”, and premises human rights on birth.
Likewise, other international and regional human rights treaties, as drafted and/or subsequently interpreted, clearly reject claims that human rights should attach from conception or any time before birth. They also recognise that women’s right to life and other human rights are at stake where restrictive abortion laws are in place.
The Ministry of Gender, in its Combined Second to Eighth Periodic Report under the ACHPR and initial report under the protocol to the African Charter on the Rights of Women in Africa of 2018, has lamented the restrictive nature of the legal framework with regard to access to abortion as a culprit of many health complications, including death arising from botched abortions that are not performed by qualified medical practitioners.
It is a generally known historical fact that abortion, just like homosexuality, was legally restricted in almost every country by the end of the nineteenth century. The most important sources of such restrictive laws were, or are, the imperial countries of Europe—Britain, France, Portugal, Spain, and Italy—who imposed their own laws forbidding abortion in their colonies.
Lesotho, like all other former colonies, therefore, usurped such laws and continues to apply them today, even though the former colonial powers have already liberalized some of their laws and policies regarding abortion.
In conclusion, Lesotho needs to adopt a more liberal policy regarding safe abortion and to decriminalize abortion practice and provision. This would benefit the poorest of women who fall subject to sexual violation and have few options available to them, apart from seeking backstreet abortions. Women need to have greater voice and agency over their bodies without the need to follow lengthy and remote hurdles to attain health care.
| Seabata Makoae is a Social Worker doubling as Gender Equality Activist working for She-Hive Association in Lesotho. He is a seasoned Social Worker renowned for his incisive outspokenness and in-depth analysis on critical social issues and a strong proponent of feminist politics. His activism endeavours are particularly concentrated on the intersection of gender-based violence (GBV) and its economic repercussions for women and girls. Makoae is a vocal advocate for cultural transformation and the enhancement of institutional responses to effectively tackle the pervasive issue of GBV. He underscores the necessity of robust data collection and analysis as a cornerstone for developing strategies to address this crisis, urging immediate and comprehensive action from various sectors of society. |
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