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The Global Gag Rule and Access to Abortion THE GLOBAL GAG RULE AND ACCESS TO ABORTION: Impact on law reform in Zimbabwe, Zambia, Mozambique, Eswatini and Malawi Southern Africa Litigation Centre Second Floor, President Place, 1 Hood Avenue, Rosebank, Johannesburg, South Africa, 2196 e-mail: [email protected], tel: +27 (0) 10 596 8538 www.southernafricalitigationcentre.org twitter: @Follow_SALC Electronic copies of this report can be found at: www.southernafricalitigationcentre.org. © Southern Africa Litigation Centre, 2020 SALC POLICY BRIEF The Global Gag Rule and Access to Abortion: Impact on law reform in Zimbabwe, Zambia, Mozambique, Eswatini and Malawi About the Southern Africa Litigation Centre The Southern Africa Litigation Centre (SALC), established in 2005, aims to provide support to human rights and public interest advocacy and litigation undertaken by domestic lawyers and human rights organisations in Southern Africa. SALC works in Angola, Botswana, Democratic Republic of Congo, Eswatini, Lesotho, Malawi, Mozambique, Namibia, Tanzania, Zambia and Zimbabwe. Authorship and acknowledgments This report was adapted from an initial draft commissioned by amfAR in 2017. The report was researched and written by Tambudzai Gonese-Manjonjo, Equality Programme Lawyer at SALC. Additional research was provided by Christina Hunguana (Mozambique), Walker Syachalinga (SALC intern) and Nick Bugeja (SALC intern). The document was edited by Anneke Meerkotter (SALC Litigation Director), Nick Bugeja (SALC intern) and Zoe Tsumbane (SALC intern). The research was made possible through the generous support of the Open Society Initiative for Eastern Africa(OSIEA) and amfAR, the Foundation for AIDS Research. CONTENTS 04. INTRODUCTION 05. The right to safe abortion and international obligations 07. THE PROTECTING LIFE IN GLOBAL HEALTH ASSISTANCE POLICY (GLOBAL GAG RULE) 07. The scope and implementation of the policy 09. The exceptions 09. • Entities 09. • Activities 10. The affirmative duty “defence” 11. THE IMPACT OF THE GLOBAL GAG RULE 12. ZIMBABWE 12. Legislative and policy framework 13. Constitution 13. Termination of Pregnancy Act 15. Criminal Law 15. Case law 17. Access to safe abortion, informed consent and medical ethics 17. • No duty to perform an abortion 20. The need for law reform 20. International obligations on access to abortion 20. The Global Gag Rule and law reform efforts 21. ZAMBIA 21. Legislative and policy framework By Tambudzai Gonese-Manjonjo 22. Constitution 22. The Termination of Pregnancy Act 22. Criminal law 23. The Gender Equity and Equality Act 24. Standards and guidelines for comprehensive abortion care in Zambia 24. Case law 25. The need for law reform 26. International obligations 27. Impact of GGR on law and policy reform 28. MOZAMBIQUE 28. Legislative and policy framework 29. The Penal Code 30. Ministerial guidelines on abortion 30. • Conscientious objection 31. • State obligations 31. The case for improvement in access and further law reform 32. International obligations 33. Impact of GGR on abortion access, law, and policy reform 34. ESWATINI 34. Legislative and policy framework 35. Common law 35. The Constitution 35. National policy on sexual and reproductive health 35. Criminal law 36. The need for law reform 36. International obligations 37. The effect of the GGR on law reform and access to abortion 38. MALAWI 39. Legislative and policy framework 39. Criminal law 40. The need for law reform 40. The Global Gag Rule, abortion law reform and access to safe abortion 41. CONCLUSION 6 The Global gag rule and access to abortion INTRODUCTION Article 14(2) of the Protocol on the Rights of Women in Africa (called the Maputo Protocol)1 recognizes the sexual and reproductive health rights of women in Africa. Article 14(2) (c) of the Maputo Protocol mandates African States to facilitate access to safe abortion in cases of sexual assault, rape, incest or where the pregnancy poses a risk to the physical or mental health of the woman, and where the pregnancy poses a risk to the life of the pregnant woman or the foetus. There is, therefore, recognition of the right to safe abortion under the African Charter. Restrictive or unclear laws and negative attitudes make it difficult to realize the right to safe abortion. Their effect is to increase, rather than eliminate, the number of induced abortions, most of them unsafe. Unsafe abortion has been cited as a significant component in the high rates of maternal mortality in the Southern African region. There is therefore much need for advocacy for law reform to change and improve laws to ensure access to safe abortion, and for people to have access to sexual and reproductive health information to 1. Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol Text) African Union; 2003. Alexandra Bilham Shutterstock.com The Global gag rule and access to abortion 7 make informed reproductive choices. with international law and afford women their Many NGOs in Africa conduct activities sexual reproductive rights, there is a need for to advocate for law reform and to raise law reform, including clearly providing for awareness to improve access to Sexual and instances where abortion is legal, expanding Reproductive Health (SRH) information, and the legal grounds to access abortion, and thereby help to increase the ability of the State simplifying the processes required to acquire to improve public health. The ability of civic a safe abortion. There is also a need to bring organizations to cover the gaps and carry out awareness on the law to the public and to this work is hampered by the lack and loss of decriminalize abortion to remove the barriers donor funding. The Protecting Life in Global to access and reduce maternal mortality. Health Assistance (PLGHA) Policy prohibits US global health funding provision to foreign Much of the advocacy and awareness (non-US) Non-Governmental Organizations campaigns needed to reform the law and bring (NGO) that perform, advocate for, counsel or awareness of existing provisions to ensure refer for abortion as a form of family planning access to safe abortion for women is done in their own country, even if the funding for by NGOs. Partly because governments often these activities is sourced from other sources have little capacity and has traditionally formed that are not US government sources. In terms partnerships with NGOs. The efforts needed of the policy, as a condition for receiving US to achieve this reform may subject NGOs to government global health funding, foreign the restrictions posed by the Global Gag Rule (non-US) NGOs must agree not to perform (GGR), and either limits their work due to what or promote abortion as a method of family is required to comply or restricts their work planning with any of their non-US funding. due to loss of funding. The GGR has already harmed the viability of NGOs working on SRHR, This study was conducted in four Southern including those advocating for safe abortion, African countries that are recipients of large and on African States’ ability to comply with amounts of US global health funding and are their obligations in terms of international law potentially affected by the effects of the PLGHA; and their laws. namely Zimbabwe, Zambia, Malawi, Eswatini and Mozambique. It provides an assessment The right to safe abortion and international obligations of the legal and policy environment governing access to abortion in Zimbabwe, Zambia, Article 14(2) of the Maputo Protocol provides Eswatini, Malawi and Mozambique, how this that women in Africa have sexual and interacts with the policy and how this affects reproductive rights, consisting of the right compliance with national and international to control fertility, decide on family-planning, obligations relating to providing access to safe and decide whether to bear children. In terms abortion. of article 14(2)(c), African Member States are required to put in place adequate measures, The study concludes that there are varying including laws and policies to ensure access levels of restrictions and shortcomings within to safe abortion at least in cases where the the law and policy. In these countries, to comply 8 The Global gag rule and access to abortion pregnancy poses a danger to the mental and physical health of the pregnant woman; in cases where the pregnancy has resulted from rape or incest; where the continued pregnancy endangers the life of the woman or the foetus; or where the foetus is likely to have a severe disability or is not viable. These provisions have become the content of the right to safe abortion 2 INTRODUCTION in Africa. African Union Member States thus should ensure access to safe abortion at the minimum in the circumstances outlined above. The Committee of Experts on the Maputo Protocol has clarified what this entails in General Comment No.2, defining Member States’ duties towards ensuring access to safe abortion as inclusive of the provision of information and informed consent to services. States must ensure that an enabling legal and policy framework is in place, inclusive of removal of legal barriers such as criminal sanctions. Article 12 of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) requires the Member States to ensure equal access to health including reproductive health by removing barriers caused by discriminatory laws and practices. The CEDAW Committee in its General Recommendation No.24 states that creating legal barriers such as criminal sanctions to health services that
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