Author: Satang Nabaneh
Post-doctoral Fellow, Centre for Human Rights, University of Pretoria
Sexual and reproductive health and rights has been recognized to be embodied in human rights instruments. The achievement of sexual and reproductive health relies on realizing sexual and reproductive rights. This means that States have general obligations to respect, protect and fulfill these rights. Despite these obligations, violations of women’s sexual and reproductive health and rights are evident, including denial of essential services such as obstetric care, lack of high-quality care, access to safe abortion, female genital mutilation (FGM), and early marriage. With regard to HIV infections, the WHO African region remains the most severely affected, with nearly 1 in every 25 adults (3.6%) living with HIV and accounting for more than two-thirds of the people living with HIV worldwide.
Meanwhile, many African countries’ maternal mortality ratios (MMR) remain very high. It is estimated that Sub-Saharan Africans suffer from the highest MMR – with an estimated 533 maternal deaths per 100,000 live births or 200,000 maternal deaths a year. Additionally, women in Africa continue to suffer from the consequences of unsafe abortion-related mortality. For instance, as of 2019, women from sub-Saharan Africa account for the highest incidence of deaths at 185 per 100,000 abortions, for a total of 15,000 preventable deaths every year. In addition, cultural practices such as child marriage and lack of information account for the high fertility rate in the region. Of the over 200 million girls that have undergone FGM, the majority live in Africa.
While significant progress has been made in advancing sexual and reproductive health and rights since the 1994 International Conference on Population Development in Cairo and the 1995 Beijing Declaration, significant challenges remain with regard to realizing these rights. Against this background, the present blog post will emphasize the regional protection of women’s reproductive health and rights, focusing primarily on access to abortion.
The Protection of Women’s Reproductive Rights in Africa
The 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘Maputo Protocol’ or ‘Protocol’) is one of the most comprehensive and progressive women’s human rights instruments adopted by the African Union (AU) and has been ratified by 42 Member States. This indicates the favorable reception that the Protocol enjoys in the continent as the foremost legal instrument on women’s rights. The Protocol guarantees extensive rights to women in Africa, as it covers the entire range of civil and political, economic, social, cultural, and environmental rights. However, it is important to note that some African countries (including Cameroon, Kenya, Uganda, and Rwanda) have entered reservations to the provision on abortion upon ratification.
The African Commission on Human and Peoples’ Rights (‘African Commission’) has provided further interpretive guidance for women’s rights in Africa by elaborating on specific rights while assisting states in fulfilling their obligations under the Maputo Protocol. In 2012, the African Commission adopted its first General Comment to clarify the scope of Article 14 (1) (d) and (e) of the Maputo Protocol (‘General Comment No 1’). The said Article is the first provision to address HIV as a human rights issue explicitly. States’ obligations, as clarified by the General Comment, include providing a conducive legal and political environment, ensuring access to information and education on HIV, and availability, accessibility and affordability of quality reproductive health procedures, technologies, and services.
General Comment No. 2 addresses the sexual and reproductive health provisions, including access to contraceptive services, safe abortion services, and age-appropriate sexuality education. In addition, the Joint General Comment on Child Marriage of the African Commission and the African Committee of Experts on the Rights and Welfare of the Child (‘ACERWC’) outlined that States should ensure access to comprehensive sexual and reproductive health services that are “integrated, rights-based, women-centered and/or youth-friendly and free of coercion, discrimination and violence.” The African Commission and the ACERW noted that girls in child marriages are at higher risk of pregnancy-related health complications and should be provided with safe abortion. Harmful practices such as FGM and child marriage are human rights violations and forms of gender-based violence that put women’s and adolescents’ sexual and reproductive health and rights at risk.
In addition, various regional efforts also culminated into the adoption of the revised Maputo Plan of Action 2016–2030 on universal access to sexual and reproductive health care services in Africa. The Plan of Action reaffirms the unfinished business of sexual and reproductive health and rights as articulated in Agenda 2063 ‘The Africa We Want’ and the Sustainable Development Goals (SDGs).
The African Commission, which can receive communications alleging violations on the African Charter and its subsequent protocols, and the African Court on Human and Peoples’ Rights have not yet had the opportunity to develop their jurisprudence on the sexual and reproductive rights provisions as stipulated in the Maputo Protocol. However, there have been critical national judgments that advance sexual and reproductive health and rights including, in Kenya, Zimbabwe, Uganda, and South Africa.
Access to Safe Abortion under the Maputo Protocol
The Maputo Protocol is the only human rights treaty that expressly recognizes access to safe abortion as a human right. Article 14(2)(c) of the Maputo Protocol permits abortion on the grounds of risks to the health or life of the pregnant women, the risk to the life of the foetus, sexual assault, rape, and incest. In 2014, the African Commission adopted General Comment No. 2, which focuses on promoting and protecting women and girls’ sexual and reproductive rights in the African region and particularly on access to safe abortion. General Comment No 2 serves as a valuable benchmark that consolidates international best practices on state’s obligation to respect, promote, protect, and fulfill rights specifically to the issue of abortion.
In the General Comment, the African Commission sets out the normative content of Article 14(1) (a), (b), and (c) under paragraphs 22-27. The Commission reiterated that women enjoy the right to make decisions about their fertility, whether to have children, the number of children, the spacing of children, and methods of contraception without interference from the State or non-State actors. Recognizing that the most significant barriers to women’s access to reproductive services are traditions and cultural or religious practices (paragraph 12), the General Comment obligates States to remove impediments to health services for women as provided under paragraphs 23 and 24. The General Comment further clarified Article 12.1 (f) on the right to family planning education to constitute women’s right to access information and education regarding their sexual and reproductive rights. Under paragraph 28, the General Comment obligates States to ensure that this information should be complete, available, reliable, and available in various forms accessible to community members using different languages and to all women and girls, including those with disabilities.
The Commission also expounded the normative content of article 14(2)(c), underscoring that all women have the right to access maternal health services and safe abortions in cases of sexual violence, incest, and emergency medical situation. It also further noted that these services must be consistent with current international standards, provided without discrimination, and made available. As noted elsewhere, “unprecedentedly, the Commission addressed states’ duty to adequately regulate the practice of conscientious objection in the reproductive health sphere.” Conscientious objection has been defined as “the refusal to participate in an activity that an individual considers incompatible with his/her religious, moral, philosophical, or ethical beliefs.” While health care providers may invoke conscientious objection to the direct provision of the required medical services, this would not be allowed in the case of a woman whose health is at serious risk or requires emergency care or treatment as provided for in paragraph 26. The Commission further obligates States in paragraph 48 to:
ensure that health services and health care providers do not deny women access to contraception/family planning and safe abortion information and services because of, for example, requirements of third persons or reasons of conscientious objection
Thus, States must ensure that women are referred to other health providers in a timely manner to obtain the necessary services. Paragraph 26 clearly stipulates that medical institutions cannot invoke conscientious objection.
Challenges and Opportunities
Despite African regional developments and domestic reforms culminating in at least more than half of the African countries now permitting abortion on the ground of the woman’s health, but also increasing recognition of the grounds of rape, incest, and danger to foetal health or life, this has not translated into real and tangible access to safe abortion services. Women in the African region can rarely access safe abortion, as inferred from the high prevalence of unsafe abortions in the region. The crime and punishment model, which regulates abortion, is still dominant in many African states. The Guttmacher Institute estimated that the majority of women of reproductive age in Africa live in countries with highly restrictive abortion laws. In addition, medical abortion continues to be highly regulated, including criminalization of self-use. Implementation of the Maputo Protocol has been admittedly slow as women continue to face barriers to access abortion services even in countries where abortion has been liberalized. For instance, in South Africa, the most common barriers to accessing abortion services include the lack of a legal framework to regulate conscientious objection, accessibility difficulties for poor or marginalized women, stigma and lack of information accessing safe abortion services.
The pressing challenges related to sexual and reproductive health and rights, as highlighted above, illustrate the urgent need to reform African abortion laws and policies. In addition, addressing persistent barriers requires ensuring access to family planning services, skilled attendance at birth, emergency obstetric care, post-partum care, safe abortion services, post-abortion care other sexual and reproductive health services. As noted elsewhere, “investing in women and girls’ empowerment is pivotal for reaching the goals of sustainable development,” which can only be fulfilled when women and girls enjoy the complete set of sexual and reproductive rights. The calls to action to #BreakTheBias for a gender-equal world free of prejudice, stereotypes, and discrimination for a sustainable tomorrow, must entail a commitment to the fulfilment of sexual and reproductive rights of women and girls.
About the Author:
Satang Nabaneh is a Post-doctoral Fellow at the Centre for Human Rights, Faculty of Law, University of Pretoria. She is the Programme Manager of the LLM/MPhil in Sexual and Reproductive Rights in Africa (SRRA) at the Centre. Satang holds the degrees LLD and LLM in Human Rights and Democratisation in Africa from the University of Pretoria and an LLB from the University of The Gambia. Her research interests include a broad range of issues related to international human rights, women’s rights, democracy, and constitutionalism.
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