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A Feminist Perspective on Nurses and Conscientious Objection in South Africa

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A Feminist Perspective on Nurses and Conscientious Objection in South Africa POWER DYNAMICS IN THE PROVISION OF LEGAL ABORTION: A FEMINIST PERSPECTIVE ON NURSES AND CONSCIENTIOUS OBJECTION IN SOUTH AFRICA NAME: SATANG NABANEH STUDENT NUMBER: 12376648 A thesis submitted in fulfilment of the requirements for the degree of Doctor of Laws (LLD) In the Faculty of Law, University of Pretoria Supervisor: Charles Ngwena, Professor of Human Rights Law, Centre for Human Rights, University of Pretoria Co-Supervisor: Siri Gloppen, Professor of Comparative Politics, University of Bergen March 2020 © University of Pretoria DECLARATION I declare that this thesis, ‘Power dynamics in the provision of legal abortion: A feminist perspective on nurses and conscientious objection in South Africa,’ which I hereby submit for the degree Doctor of Laws (LLD) at the Faculty of Law, University of Pretoria, is my work and has not been previously submitted by me for a degree at this or any other tertiary institution. Name: Satang Nabaneh Student No: u12376648 Date: 30 November 2019 © University of Pretoria DEDICATION “A word after a word after a word is power.” - Margaret Atwood, “Spelling” To my parents, Sheriffo Nabaneh and Mamanding Ceesay; who let me discover my power at a very early age. Thank you for believing in me and letting me be loud and visible. I found my voice and my power: to fight for the rights of all women. This is for you. © University of Pretoria ACKNOWLEDGMENTS This thesis is the culmination of a journey that gave me endless opportunities to form friendships, undertake collaborative research and partipate in multi- disciplinary research teams. For this, am grateful to institutions and individuals that have contributed to this journey. Here I mention a few: My supervisors: Prof Charles Ngwena, Centre for Human Rights, Faculty of Law, University of Pretoria and Prof Siri Gloppen, Centre on Law & Social Transformation, Christian Michelsen Institute (CMI), University of Bergen, Norway, for their dedicated supervision, guidance and motivation over the past few years. Thank you for deepening my passion as a scholar. Thank you to the CMI-UiB Centre on Law & Social Transformation for funding my doctoral studies as part of the Political determinants of sexual and reproductive health: Criminalisation, health impacts and game changer project, funded by the Research Council of Norway (grant number 248159). Many thanks to the Bergen Exchanges on Law & Social Transformation community for providing me a space to learn and get inspiration from. I am forever a #Lawtransformer. Thank you to the African Population and Health Research Center (APHRC) for the African Doctoral Dissertation Research Fellowship (ADDRF) 2018-2020. This fellowship accorded me opportunities for trainings and additional funding to conduct the research. Thank you to the Ipas South Africa office, notably, Dr Makgoale Magwentshu and Matokgo Makutoane for your willingness to share information and assistance in facilitating access to healthcare facilities. Being part of the Ipas Innovation Lab addressing the growing use of conscientious objection in Mexico, Bolivia and South Africa was very instrumental for this thesis. A special thank you to Marion Stevens, Chairperson of the Sexual and Reproductive Justice Coalition (SRJC) for your invaluable contacts and sharing your networks. Many thanks also to Prof. Cathi Albertyn for giving me access to your amazing archive. Thank you to the healthcare providers, policy makers and researchers whose valuable time and information made this research possible. A special thank you to my friends and colleagues in the Women’s Rights Unit and staff of the Centre for the many forms of support. © University of Pretoria To Prof Ebenezer Durojaye, Thuto Maqutu and Michael Nyarko, thank you for being an important part of my doctoral journey and for your friendship. To my most dedicated editor, friend and mentor, Njundu Drammeh, I couldn’t have done this without you. My love and appreciation always. To my sister-sister, Musu Bakoto Sawo, for being a significant pillar of support and for your enthusiasm. This LLD is ours! I am eternally grateful to my father and mother, Sheriffo Nabaneh and Mamanding Ceesay; my siblings: Fatou, Lamin and Baboucarr for your unconditional support and prayers and accommodating my silences. Big hugs to all my babies. Immense gratitude to my second family (Isatou Cham and Papa Cham); thank you for welcoming me with open arms and taking care of my son in my absence. Finally, to my two favourite human beings, my #MMCs: my husband, Mam Mbye Cham and my son Mahy M. Cham, I owe a debt of gratitude to you. Thank you for being so understanding about sacrificing together time so I could pursue a doctoral degree. Most importantly, thank you for loving and encouraging me. I love you!!! Satang Nabaneh Pretoria November 2019 © University of Pretoria ABSTRACT Though hailed as one of the most exemplary laws on abortion, the 1996 Choice on Termination of Pregnancy Act of South Africa does not directly address conscientious objection. The consequences of such a gap serve as an obstacle to the efficacy of a liberal abortion law in practice. Where there are no clear laws or guidelines, the environment is conducive for healthcare providers acting within their ‘own’ interpretation of the law. This thesis centres around nurses as the largest single group of health care providers in South Africa. Within this context, it explores the factors that shape how and why nurses exercise conscientious objection to the provision of abortion services. Understanding providers’ practices of power in the exercise of conscientious objection requires attention at the intersection between gender hierarchies and power arrangements. The thesis further examines the conditions and challenges of nurses’ contemporary role in abortion service provision. It focuses on the structural conditions in which abortion - providing nurses perform their abortion services. The research conducted in this thesis provides an original contribution by employing feminist socio-legal methodologies to identify the complex and interwoven legal, political, and socio-cultural contexts. I utilised doctrinal and empirical research methods to draw conclusions of how we think about conscientious objection. Through in-depth interviews with nurses and information gathered from government officials, academics and members of civil society such as women’s rights organizations and litigators, this thesis determines a number on strategies to improve the transformative potential of sexual and reproductive health and rights of women and girls. Keywords: abortion, conscientious objection, South Africa, nurses, African feminism © University of Pretoria LIST OF ACRONYMS ACPD African Christian Democratic Front (ACDF) African Charter African Charter on Human and Peoples’ Rights African Court African Court on Human and Peoples’ Rights ANC African National Congress AU African Union BoR Bill of Rights BPA Beijing Platform of Action CEDAW Convention on the Elimination of All forms of Discrimination Against Women CESCR Committee on Economic, Social and Cultural Rights CC Constitutional Court CLA Christian Lawyers Association DA Democratic Alliance D & E Dilation and Evacuation DFL Doctors for Life EFF Economic Freedom Fighters FF Freedom Front GC General Comment HRC Human Rights Council ICESCR International Covenant on Economic, Social and Cultural Rights ICCPR International Covenant on Civil and Political Rights ICPD International Conference on Population and Development © University of Pretoria Maputo Protocol Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa MVA Manual Vacuum Aspiration NDoH National Department of Health NGOs Non-Governmental Organisations RRA Reproductive Rights Alliance SANC South African nursing Council SRJC Sexual and Reproductive Justice Coalition UDHR Universal Declaration on Human Rights UN United Nations Universal Declaration Universal Declaration of Human Rights TOP Termination of Pregnancy VCAT Values Clarification and Attitude Transformation Vienna Convention Vienna Convention on the Law of Treaties WB World Bank WHO World Health Organization ZAR South African Rand © University of Pretoria TABLE OF CONTENTS DECLARATION ........................................................................................................................................ I DEDICATION ......................................................................................................................................... II ACKNOWLEDGMENTS ....................................................................................................................... III ABSTRACT ............................................................................................................................................. V LIST OF ACRONYMS ........................................................................................................................... VI PROLOGUE: FREE TO CHOOSE ......................................................................................................... 1 CHAPTER ONE: INTRODUCTION .................................................................................................. 12 1.1 BACKGROUND .................................................................................................................................. 12 1.2 PROBLEM STATEMENT .................................................................................................................... 21 1.3 RESEARCH AIMS AND OBJECTIVES ..............................................................................................
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