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Taking Women's Rights Seriously: Using Human Rights to Require State Implementation of Domestic Abortion Laws in African Countries with Reference to Uganda

  • Charles G Ngwena
Abstract

This article is constructed around the premise that women's rights to safe abortion give rise to obligations that the state has a positive duty to implement. Using Uganda as a case study, it frames failure by a state to implement its abortion laws in ways that render the rights tangible and accessible to women as a violation of human rights. The article develops a normative human rights framework for imposing on a state the obligation to take positive steps to implement abortion laws that the state, itself, has adopted. The framework does not depend on requiring the state first to reform its substantive laws or broaden the grounds for abortion. Rather, it focuses on the implementation of existing domestic laws. The article draws its remedial juridical responses partly from conceptions of women-centred rights to procedural justice, equality and health, and partly from jurisprudence developed in recent years by United Nations treaty-monitoring bodies and the European Court of Human Rights.

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1 Boland, R and Katzive, LDevelopments in laws on induced abortion: 1998–2007” (2008) 34/3International Family Planning Perspectives 110.

2 RJ Cook “Stigmatized meanings of criminal abortion law” in RJ Cook et al (eds) Abortion Law in Transnational Perspective: Cases and Controversies (2014, Pennsylvania University Press) 347 at 351.

3 Finer, L and Fine, JBAbortion law around the world: Progress and pushback” (2013) 103/4American Journal of Public Health 585.

4 Centre for Reproductive Rights “The world's abortion laws map 2014”, available at: <http://www.reproductiverights.org/document/the-worlds-abortion-laws-map/> (last accessed 16 June 2015); Ngwena, CGAccess to legal abortion: Developments in Africa from a reproductive and sexual health rights perspective” (2004) 19 SA Public Law 328.

5 Ngwena, CGInscribing abortion as a human right: Significance of the Protocol on the Rights of Women in Africa” (2010) 32/4Human Rights Quarterly 783.

6 Adopted 11 July 2003 (entered into force 25 November 2005), 2nd ordinary session of the Assembly of the African Union, AHG/Res 240 (XXXI).

7 African Commission on Human and Peoples’ Rights “Ratification table: Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa”, available at: <http://www.achpr.org/instruments/women-protocol/ratification/> (last accessed 17 June 2015).

8 Maputo Protocol, art 14(2)(c).

9 See the discussions below under “Incidence and phenomenon of unsafe abortion in the African region and Uganda” and “Abortion laws of Uganda”.

10 Guttmacher Institute Making Abortion Services Accessible in the Wake of Legal Reforms: A Framework and Six Case Studies (2012, Guttmacher Institute); Sedgh, G et al. “Induced abortion: Incidence and trends worldwide from 1995–2008” (2012) 379 Lancet 625 at 626.

11 African Commission “General Comment No 2 on article 14(1)(a), (b), (c) and (f) and article 14(2)(a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa”, adopted 28 November 2014, available at: <http://www.achpr.org/files/instruments/general-comments-rights-women/achpr_instr_general_comment2_rights_of_women_in_africa_eng.pdf> (last accessed 16 June 2015). See discussion under “Developing a remedial human rights framework” below.

12 Ngwena, CG et al. “Human rights advances in women's reproductive health in Africa” (2015) 129 International Journal of Gynecology and Obstetrics 184.

13 Berer, MNational laws and unsafe abortion: The parameters of change” (2004) 12 Reproductive Health Matters 1; S Singh et al Abortion Worldwide: A Decade of Uneven Progress (2009, Guttmacher Institute) at 25–29.

14 Grimes, DA et al. “Unsafe abortion: The preventable pandemic” (2006) 368 Lancet 1908 at 1913–14.

15 See the discussion below under “Uganda's abortion laws”.

16 Human Rights Network-Uganda Reviewing Chapter Four of the 1995 Constitution: Towards the Progressive Reform of Human Rights and Democratic Freedoms in Uganda (2013, Human Rights Network-Uganda) at 13; Center for Reproductive Rights A Technical Guide to Understanding the Legal and Policy Framework on Termination of Pregnancy in Uganda (2012, Center for Reproductive Rights) at 6; Center for Reproductive Rights The Stakes are High: The Tragic Impact of Unsafe Abortion and Inadequate Access to Contraception in Uganda (2013, Center for Reproductive Rights) at 34.

17 Constitution of the Republic of Uganda, 1995.

18 Penal Code Act of 1950. It can be noted that sec 212 of the Penal Code punishes a person who “when a woman is about to be delivered of a child, prevents a child from being born alive”. This provision falls outside the purview of this article as it is better understood as criminalizing infanticide and not abortion.

19 See the discussion below under “Developing a remedial human rights framework”.

20 Ibid.

21 Adopted 27 June 1981, entered into force 21 October 1986, OAU doc CAB/LEG/67/3 rev 5, 1520 UNTS 217. See the discussion below under “Developing a remedial human rights framework”.

22 M Scheinin “Characteristics of human rights norms” in C Krause and M Scheinin (eds) International Protection of Human Rights: A Textbook (2012, Abo Akademi University Institute for Human Rights) 19 at 27–29.

23 Comm no 1153/2003 (24 October 2005) UN GAOR, Human Rights Committee, 85th session, UN doc CCPR/C/85/D/1153/2003 (2005).

24 Comm no 22/2009 (25 November 2011) Committee on the Elimination of Discrimination against Women, UN doc CEDAW/C/50/D/22/2009.

25 Comm no 1608/2007, UN doc CCPR/C/101/D/168/2007, Human Rights Committee (2011).

26 Appln no 5410/03, ECHR 2007-IV (2007) European Court.

27 Appln no 25579/05, [2010] ECHR 2032 European Court.

28 Appln no 27617/04, European Court (2011).

29 Appln no 57375/08, European Court (2012).

30 WHO Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008 (2011, WHO).

31 Id at 27.

32 Id at 28.

33 Ibid.

34 The Middle Africa, Northern Africa and Western Africa regions occupy intermediate positions (12 per cent in each region): ibid. The description of Africa's regions as Eastern, Middle, Northern, Southern and Western Africa aligns the discussion with the terminology used in id at 30.

35 Singh, S et al. “The incidence of induced abortion in Uganda” (2005) 31/4International Family Planning Perspectives 183.

36 Ministry of Health “Reducing morbidity and mortality from unsafe abortion in Uganda: Standards and guidelines” (2015) at 1; Guttmacher Institute “Abortion in Uganda” (fact sheet, January 2013).

37 Singh et al “The incidence of induced abortion”, above at note 35 at 183.

38 Id at 187; Guttmacher Institute “Abortion in Uganda” above at note 36; Singh et al Abortion Worldwide, above at note 13 at 6.

39 Singh et al “The incidence of induced abortion”, above at note 35 at 187; Guttmacher Institute “Abortion in Uganda”, above at note 36; Singh et al Abortion Worldwide, above at note 13 at 6.

40 Guttmacher Institute “Abortion in Uganda”, above at note 36; Singh et al Abortion Worldwide, above at note 13 at 26–28.

41 The Constitution, art 2.

42 RB Siegel “The constitutionalisation of abortion” in Cook et al (eds) Abortion Law, above at note 2, 13 at 16.

43 “Motion: Consideration of the Draft Constitution of Uganda” Proceedings of the Constituent Assembly (official report, contents of 12 September 1994) at 2035–38.

44 Ibid.

45 Id at 2035–37.

46 Siegel “The constitutionalisation of abortion”, above at note 42 at 16. The vast majority of African constitutions do not enumerate abortion or foetal rights. The Ugandan Constitution aside, the other main exceptions are: art 26(4) of the Kenyan Constitution of 2010; sec 15(5) of the Constitution of Swaziland of 2005; and sec 48(3) of the Constitution of Zimbabwe of 2013. Significantly, these three constitutions all envisage circumstances in which abortion is permitted.

47 McLean, SAMAbortion law: Is consensual reform possible?” (1990) 17/1Journal of Law and Society 106.

48 Siegel “The constitutionalisation of abortion”, above at note 42 at 13.

49 Ibid.

50 410 US 113 (1973).

51 BVerfG, 15 February 1975, 39 BVerfG 1, translated in Jonas, RE and Gorby, JDWest German abortion decision: A contrast to Roe v Wade” (1975–76) 9 John Marshall Journal of Practice and Procedure 605.

52 Jonas and Gorby, id at 648.

53 Ibid.

54 BVerfG, 28 May 1993, 2 BVerfGE 2/90.

55 Case C-355/06 (2006), as translated and excerpted in Women's Link Worldwide “C-356/2006: Excerpts of the Constitutional Court's ruling that liberalised abortion in Colombia” (2007); Cook, RJExcerpts of the Constitutional Court's ruling that liberalized abortion in Colombia” (2007) 15/29Reproductive Health Matters 160 at 160–62.

56 Women's Link Worldwide, id at 20–21.

57 Id at 36.

58 Id at 25–32.

59 1998 (11) BCLR 1434 (T).

60 Ngwena, CThe history and transformation of abortion law in South Africa” (1998) 30/3Acta Academica 32 at 50–60.

61 Christian Lawyers’ Association, above at note 59 at 1442–43.

62 The Constitution, art 21.

63 Id, art 22.

64 Id, art 23.

65 Id, art 24.

66 Id, art 27.

67 Id, art 29.

68 Id, art 33.

69 Id, art 42.

70 Ngwena, CGConscientious objection to abortion and accommodating women's reproductive rights: Reflections on a decision of the Colombian Constitutional Court from an African regional human rights perspective” (2013) 58/2Journal of African Law 183 at 184–87.

71 Cook, RJ and Dickens, BMHuman rights dynamics of abortion law reform” (2003) 25/1Human Rights Quarterly 1; Zampas, C and Gher, JMAbortion as a human right: International and regional standards” (2008) 8/2Human Rights Law Review 249; Ngwena “Inscribing abortion”, above at note 5 at 787–97.

72 African Commission “General Comment No 2”, above at note 11, paras 19–22.

73 The Constitution, objective XIV.

74 Id, objective XX.

75 Id, art 8A.

76 In Centre for Health, Human Rights and Development and Others v Attorney General of Uganda, constitutional petition no 16 of 2011 (2012), the Constitutional Court of Uganda refused to treat as justiciable a claim that the state's failure to provide necessary health services had led to preventable maternal deaths, saying that such a claim raised a “political” as opposed to a justiciable question. The restrictive approach of the Ugandan Constitutional Court can be contrasted with the expansive approach of courts in India: Laxmi Mandal v Deen Dayal Harinagar Hospital, WP(C) No 8853 of 2008, High Court of Delhi (2010); see also Cook, RJHuman rights and maternal health: Exploring the effectiveness of the Alyne decision” (2013) 41/1The Journal of Law, Medicine & Ethics 103 at 106; O Afulukwe-Eruchalu “Accountability for non-fulfilment of human rights obligations: A key strategy for reducing maternal mortality in sub-Saharan Africa” in CG Ngwena and ET Durojaye (eds) Strengthening the Protection of Sexual and Reproductive Health and Rights in the African Region through Human Rights (2014, Pretoria University Law Press) 79 at 144–46.

77 R Rebouché “A functionalist approach to comparative abortion law” in Cook et al (eds) Abortion Law, above at note 2, 98; P Bergallo “The struggle against informal rules on abortion in Argentina” in Cook et al, id, 143.

78 Finer and Fine “Abortion law around the world”, above at note 3.

79 Rebouché “A functionalist approach”, above at note 77 at 103.

80 In Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833 (1992), the US Supreme Court countenanced state regulation of abortion for the purpose of foetal life protection even before the viability stage, provided the regulation does not impose an “undue burden” on the pregnant woman.

81 Ngwena “Access to legal abortion”, above at note 4 at 335–38.

82 [1939] I KB 687.

83 RJ Cook and BM Dickens Abortion Laws in Commonwealth Countries (1979, WHO) at 13–14.

84 R v Edgal, Idike and Ojugwu (1938) WACA 133, decision of the West African Court of Appeal (now defunct) that served as an appellate court with civil and criminal jurisdiction; B Ibhawoh Imperial Justice: Africans in Empire's Court (2013, Oxford University Press) at 35–36.

85 Mehar Singh Bansel v R (1959) EALR 813, decision of the East African Court of Appeal (now defunct) that served as an appellate court in civil and criminal matters; Ibhawoh, ibid.

86 Ministry of Health “Reducing morbidity and mortality”, above at note 36.

87 CG Ngwena “Reforming African abortion laws and practice: The place of transparency” in Cook et al (eds) Abortion Law, above at note 2, 166 at 167–68; JN Erdman “The procedural turn: Abortion at the European Court of Human Rights” in Cook et al, id, 121.

88 Above at note 23.

89 Above at note 24.

90 Above at note 25.

91 GA res 34/180, 34 UN GAOR supp (no 46) at 193, UN doc A/34/46, adopted 18 December 1979, entered into force 3 September 1981.

92 F Viljoen International Human Rights Law in Africa (2nd ed, 2012, Oxford University Press) at 97 and 120.

93 Ngwena, CGA commentary on LC v Peru: The CEDAW Committee's first decision on abortion” (2013) 57/2Journal of African Law 310.

94 LC v Peru, above at note 24, para 8.16.

95 Id, para 8.11.

96 Id, para 12(b)(ii).

97 LMR v Argentina, above at note 25, para 9.4.

98 Ibid.

99 C Zampas and J Todd-Gher “Abortion and the European Convention on Human Rights: A lens for abortion advocacy in Africa” in Ngwena and Durojaye (eds) Strengthening the Protection, above at note 76, 79.

100 Above at note 26.

101 Above at note 27.

102 Above at note 28.

103 Above at note 29.

104 Tysiac, above at note 26, paras 116–17.

105 Ibid.

106 Republic of Uganda “Instrument of ratification: Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa” (2010) (draft copy on file with the author).

107 See earlier discussion under “Uganda's abortion laws”.

108 WHO Safe Abortion: Technical and Policy Guidance for Health Systems (2012, WHO) at 92.

109 Ngwena “Inscribing abortion”, above at note 5 at 812; Cook and Dickens “Human rights dynamics”, above at note 71 at 22–49.

110 GA res 2200A (XXI), adopted 16 December 1966, entered into force 3 January 1976.

111 See especially CEDAW Committee General Recommendation No 24: Article 12 of the Convention (Women and Health) 1999, A54/38/Rev 1, chap 1.

112 Purohit v The Gambia (2003) African Human Rights Law Reports 96 (comm 241/2001), para 80; Ngwena “Inscribing abortion”, above at note 5 at 812.

113 Above at note 11, paras 6 and 42.

114 Id, paras 41–50.

115 This section of the article draws substantially from Ngwena “Reforming African abortion laws”, above at note 87 at 177–81.

116 Id at 177.

117 Ibid.

118 Ibid.

119 Brems, E and Lavrysen, LProcedural justice in human rights adjudication: The European Court of Human Rights” (2013) 35/1Human Rights Quarterly 176 at 177. The works of psychologists from which Brems and Lavrysen draw include: J Thibaut and L Walker Procedural Justice: A Psychological Analysis (1975, Lawrence Erlbaum Associates); and EA Lind and TR Tyler The Social Psychology of Procedural Justice (1988, Plenum Press).

120 Brems and Lavrysen, id at 179 and 184.

121 Id at 180.

122 Id at 178.

123 J Rawls Political Liberalism (2005, Columbia University Press) at 139.

124 The Constitution, art 21(2).

125 See M Nussbaum Women and Human Development: The Capabilities Approach (2000, Cambridge University Press).

126 Above at note 24; Ngwena “A commentary”, above at note 93 at 323.

127 Cook “Stigmatized meanings”, above at note 2 at 349.

128 Ibid.

129 Id at 349, 359 and 360; Bergallo “The struggle”, above at note 77 at 144–46.

130 Bergallo, id at 144.

131 WHO Safe Abortion, above at note 108 at 94.

132 Above at note 36.

133 Id at vi.

134 Ibid.

135 Ministry of Health “The national policy guidelines and service standards for sexual and reproductive health and rights” (2012).

136 Id at 4.12.

137 Ministry of Health “Reducing morbidity and mortality”, above at note 36 at 4.

138 Ibid.

139 Id at x; United Nations Population and Development “Programme of action adopted at the International Conference on Population and Development, Cairo, 5–13 September 1994”, para 7.2; UN “Platform for action and Beijing declaration, fourth World Conference on Women, Beijing, China, 4–15 September 1995”, para 94.

140 Ministry of Health “Reducing morbidity and mortality”, above at note 36 at 7–9.

141 African Union “Maputo plan of action for the operationalization of the continental policy framework for sexual and reproductive health and rights 2007–2010” (2006) (Maputo Plan of Action). In 2011, the Maputo Plan of Action was extended to 2015: The African Union Commission “Plan of action on sexual and reproductive health and rights (Maputo Plan of Action)”, available at: <http://pages.au.int/carmma/publications/plan-action-sexual-and-reproductive-health-and-rights-maputo-plan-action> (last accessed 3 February 2014).

142 Maputo Plan of Action, id, para 4.3.2a; Ministry of Health “Reducing morbidity and mortality”, above at note 36 at 7–9.

143 Family Health Department “Technical and procedural guidelines for safe abortion services in Ethiopia” (2006); Ghana Health Service Prevention and Management of Unsafe Abortion: Comprehensive Abortion Services (3rd ed, 2012, Ghana Health Service).

144 Bergallo “The struggle”, above at note 77.

145 A, B and C v Ireland, above at note 27, para 258.

146 Tysiac v Poland, above at note 26, para 118; A, B and C v Ireland, id, para 259.

147 Cusack, S and Cook, RJStereotyping women in the health sector: Lessons from CEDAW” (2009) 47 Washington & Lee Journal of Civil Rights & Social Justice 47.

148 This point is inspired by Marcus, I‘The woman question’ in post-socialist legal education” (2014) 36/3Human Rights Quarterly 507 at 565.

149 The concept of “modern tactics of state power” is borrowed from LM Alcoff “Power / knowledges in the colonial unconscious: A dialogue between Dussel and Foucault” in LM Alcoff and E Mendieta (eds) Thinking from the Underside of History: Enrique Dussel's Philosophy of Liberation (2000, Rowman and Littlefield) 249 at 254.

150 On “status subordination” and “misrecognition”, see Fraser, NRethinking recognition” (2000) 3 New Left Review 107.

151 McFadden, PBecoming postcolonial: African women changing the meaning of citizenship” (2005) 6/1Meridians, Feminism, Race, Transformation 1 at 5.

152 Hohfeld, WNSome fundamental legal conceptions as applied in judicial reasoning” (1913) 23/1Yale Law Journal 16 at 27.

153 N Lacey “Feminist legal theory and the rights of women” in K Knop (ed) Gender and Human Rights (2004, Oxford University Press) 13 at 31–32.

154 See Nussbaum Women and Human Development, above at note 125.

155 Lacey “Feminist legal theory”, above at note 153 at 40–41; Nussbaum, id at 124.

156 Hohfeld “Some fundamental legal conceptions”, above at note 152 at 16.

157 Rawls Political Liberalism, above at note 123 at 135.

158 R Dworkin Taking Rights Seriously (1977, Gerald Duckworth & Co Ltd) at 184.

159 Id at 205.

160 Siegel, RReasoning from the body: A historical perspective on abortion regulations and questions of equal protection” (1992) 44/2Stanford Law Review 261; E Vuola “Thinking otherwise: Dussel, liberation theology, and feminism” in Alcoff and Mendieta (eds) Thinking from the Underside, above at note 149, 149 at 161–66.

161 RJ Cook and S Cusack Gender Stereotyping: Transnational Legal Perspectives (2010, University of Pennsylvania Press) at 85–89; Fraser “Rethinking recognition”, above at note 150.

* Professor, Centre for Human Rights, University of Pretoria. The author is exceedingly grateful to Eunice Brookman-Amissah, Rebecca Cook, Bernard Dickens, Ebenezer Durojaye, Moses Mulumba, Sylvia Tamale and Ben Twinomugisha for their insightful comments on an earlier draft of this article.

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