First strategic litigation case on abortion in Malawi

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abortion
Abortion

Outcome announced by: KK Attorneys and Women & Law in Southern Africa (WLSA) Malawi 

 

For the first time in Malawi’s history, the High Court has handed down a ruling on the question of lawful abortion, on 15 June 2021. The applicant, a 15-year-old girl, sued the Director of Queen Elizabeth Central Hospital and the Ministry of Health for denying her access to safe abortion. 

 

The young girl, who was still in school, had become involved in a sexual relationship with a man who was older than her. According to Section 138 of Malawi’s Penal Code, sexual intercourse with a girl below the age of 16 is a sexual offence. The girl realized she was pregnant in December 2020. In March 2021, she went to the One Stop Centre at her local hospital to seek help. At the One Stop Centre, she asked for termination of her pregnancy as it was a risk to her health and life, which is legal under the exception to illegal abortion under Section 243 of the Penal Code. The abortion was refused by the hospital, however.

 

In the High Court, the girl was represented pro bono by Mlauzi Legal Solutions. In suing the hospital, the applicant asked the Court for the following: 

 

  • An order to quash the decision of the Queen Elizabeth Central Hospital, through its medical officers, to deny her a lawful termination of pregnancy;
  • A declaration outlining the specific circumstances in which survivors of illegal sexual intercourse can access safe termination of pregnancy under Section 243 of the Penal Code;
  • A mandatory order that the Ministry of Health promulgates clear guidelines within six months, which clarifies for healthcare providers in Malawi the circumstances in which survivors of illegal sexual intercourse can access safe termination of pregnancy under Section 243 of the Penal Code.

 

The Court did not grant the application for two reasons:

 

  • The applicant had not made a formal request to the hospital to terminate the pregnancy. 
  • When the case was heard in court, she was already pursuing alternative remedies, including seeking financial support from the man responsible for her pregnancy.

 

Godfrey Kangaude, legal counsel for KK Attorneys in Malawi said:

 

“This outcome represents an important milestone, even if it was not the result we wanted. We would especially like to acknowledge Judge Mzondi Mvula, Judge of the High Court of Malawi, whose extensive ruling begins to unravel the legal issues regarding abortion law in Malawi.” 

 

Some background

Since 2018, KK Attorneys and WLSA Malawi have been working to take a test-case on abortion to the High Court. With this ruling we have succeeded in getting the High Court to say something about the abortion law in Malawi. We believe we have created an opening that could lead to further litigation for justice, especially for vulnerable girls like the applicant in this case.

 

We made our first attempt to take a case to court in 2018, with the support of Population Council (Kenya), but we realized that legal counsel in Malawi were not familiar with abortion litigation. In 2019, we asked the Centre for Reproductive Rights (CRR) Kenya to support the training of lawyers on abortion litigation. Following the training, CRR Kenya supported our taking this case, our second attempt at strategic litigation.

 

We are now seeking an authoritative interpretation of Section 243 of the Penal Code. We observe that the Ministry of Health pursues a restrictive policy on lawful abortion, such that even underage girls are denied safe abortion in a public hospital. Indeed, the argument made by the hospital in this case revealed that the consequences of sexual violation are not considered to be important risk factors when a young girl seeks a lawful abortion. The Ministry of Health, in turn, is responsible for promulgating restrictive abortion care guidelines, on post-abortion care only. 

 

“We shall continue to demand that the Ministry of Health makes it explicit in the abortion care guidelines that being underage and sexual violation are risk factors that health providers should consider when providing comprehensive care, including safe abortion, to those who seek to terminate a pregnancy.”

Press release by Godfrey Kangaude LLD, Reproductive and Sexual Health Law Fellow, University of Toronto; Postdoctoral Fellow in Critical Studies in Sexualities and Reproduction, Rhodes University.

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