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The ‘principle witness’ is a strange entity: it recognizes no court’s jurisdiction, no murmuring word ever escapes its tongue, derives no meaning from the word Malawi, honours no human summons, pays no tax, and is unsure about its own citizenship.
The ‘principle witness’ is a strange entity: it recognizes no court’s jurisdiction, no murmuring word ever escapes its tongue, derives no meaning from the word Malawi, honours no human summons, pays no tax, and is unsure about its own citizenship.
But the case still ends in its favour, anyway- one of the world’s rare incidences where the winner shows no facial expression portraying happiness, and the principle loser is the over-burdened woman. The truth is there for all to see, too; that the winner will never be there, does not understand the meaning of all this, and how it all begun.
There is nothing the perplexed, over-burdened woman can do, anyway; this practice is sanctioned in the law. It does not matter that the laws- covered under Section 149, 150 and 151 of the Penal Code, and enacted in1930- that punish women for attempting to ‘resign from pregnancy’ (that is, abort) might have been overtaken by time and circumstances.
Colonialism, for instance, imposed the law and left it intact when independence called in 1964. One party rule adopted it and, when democracy took to the stage in 1994, left it still standing. Even now, when Malawi is a Fifth Republic, abortion laws remain one of the establishments still standing against the strong winds of historical changes.
“It may be time we reviewed some of these things,” says Faustace Chirwa, executive director for National Women’s Lobby Group (Nawolg).
Chirwa is one of the members in a group of people separated by varying professional interests: law, health, human rights. The issue of abortion draws them together.
On Friday May 13, 2011, group members met in Lilongwe to try, again, to make sense out of the usual question: why does the country give a little and, at the same time, take more away when it comes to the woman’s right to resign from pregnancy?
What this means is that group members want government to be humane. When it gives, it must give whole-heartedly. If it gives partially, then it should just take away.
Chirwa explains: “As things are now, the woman can terminate pregnancy only if her life is in danger. However, the girl child who falls prey to incest and rape- and these are things she could not control, things that were out of her hand- faces punishment if she aborts in her quest to rid herself of the shame and continue with her schooling. It does not make sense, in this case.”
This partial-heartedness in giving the woman personal discretion could be termed as a half-Bourne attempt and, in matters of life and death, (half) does not count. In a British court in 1938, a court ruled that the performance of an abortion on a woman was lawful because it had saved a woman from turning into “a physical and mental wreck”.
While the 1938 English Borne decision has become the reference point for women rights advocates, Malawi is not considered a true disciple of the Bourne precedent for her half-hearted zeal.
Malawi recognizes the right to resign from pregnancy only when the woman’s life is in danger. Section 243 of the Penal Code excuses practitioners from criminal blame when they perform surgical operations upon an unborn child in good faith, with reasonable care and skill. But the operation itself must be reasonable, that is, if the unborn were present, it would have found sense in grounds for forcing it into anonymity.
Other than that, it remains illegal to resign from pregnancy, a criminal offence that attracts seven years of free labour and forced confinement for the woman. The most severe punishment is reserved for those who help other people carry out abortions: 14 years Imprisonment with Hard Labour is the prescription for their will and efforts. Those who knowingly supply items to be used in the act get three years, described by Chirwa as “severe”.
She points to the many exceptional instances where resigning from pregnancy moves from being a question of choice to a matter of necessity and, again, she walks back to the issue of the under-aged girl forced into a condition of unexpected expectancy by the rust-smitten father, brother, or other well-muscled relative.
In such cases, it is not only the laws that stand between the hapless girl and a productive future. In between her and the future also stands such long-term injuries and disabilities as uterine perforation, chronic pelvic pain, and secondary infertility (infertility due to an early date with fertility), cases so frequent.
Or, in case she dies after procuring abortion through unsafe channels, she adds on to the 13 per cent of African women who die due to unsafe abortions. This is so because things turn exceptionally quickly on the pregnant teen-ager. Pregnancy from incest or rape knits together an individual, society norms and the prospect of a court appearance.
The other reality is that decisions to ‘resign from pregnancy’ are often an accumulation of quick, whispered conversations. After the termination exercise come the questions:
When she dies: Who is to blame, government or herself? When she lives but suffers serious health complications: Where else could she go? When caught and in court: Was she to blame?
But society still takes no positive action to put in place enabling laws. At least until recently when Chirwa and others are forming groups to look into the social effects of following some well-intentioned laws. But meetings such as one in Lilongwe on May 13 may yield to a naught if the definition of life remains a matter of personal taste.
“Every person has the right to life and no person shall be arbitrarily deprived of his or her life: Provided that the execution of the death sentence imposed by a competent court on a person in respect of a criminal offense under the laws of Malawi of which he or she has been convicted shall not be regarded as arbitrary deprivation of his or her right to life,” reads Section 16 of the Constitution of the Republic of Malawi.
This raises four immediate questions: what is life? Whose life is it, the citizen’s or that of the foetus? And, legally and not medically, when does a foetus become alive? In fact, is there anywhere in the constitution, or any other statute, a place where life is defined?
Enters Principal Secretary in the Ministry of Justice and Constitutional Affairs- and Solicitor General- Anthony Kamanga: “Well, I don’t want to do research for you on that issue (of defining life in our laws). Do your own research.”
And this research (conducted by this reporter) reveals that life is not defined in the Constitution. This raises legal questions: When a suspect is convicted of murder or abortion, with this apparent lack of specifically laid-down parameters on what constitutes life, is the decision not based on assumptions as opposed to clearly laid down provisions?
Why has the country, through Constitutional Review programmes, left the discretion to decide what life is on human bias and common sense- common sense being subjective? This is clearly a weak link in our perception of life. If life is so important, it must be defined. It is the only way we will know when life really begins, legally; and, if there are conflicts in medical and legal definitions over when life truly begins, the Law Commissioners will be there to guide the harmonization process.
When does life really begin, legally? Is it at conception, when the first medical scan on the expectant mother reveals it is a baby-boy or girl, or at delivery?
“Some say at conception,” says Kamanga.
Legally?
“The issue of abortion is a topical issue. However, I do not want to be drawn into the debate. Let people express their views on the issue, but I don’t want to be drawn into this debate on abortion,” says the soft-spoken, media-friendly Kamanga.
And so ended the short interview on whether there is a Constitutional provision clearly defining life, and what it is made up of.
The second question, naturally, pertains to the parties involved in a court case on abortion. In any other case, there is the prosecution, the presiding magistrate, judge or Justice, the defense, and witnesses. In abortion cases, however, the main witness (unborn) always misses out. But that is not an issue, the issue is its identity- in terms of nationality.
In abortion court procedures, the defendant is a citizen of Malawi, or someone who committed the offense in Malawi. On the other hand, is the unborn child or foetus a bonafide citizen of the Republic of Malawi?
“That is not stipulated in the laws. Try talking to the judiciary on that one,” Peter Kakatera, public relations officer for Malawi’s Immigration Department, advises.
The Immigration Department uses two Acts: the Immigration Act of 1964, and the Citizenship Act enacted in 1966. All these are old pieces of law because The Immigration Act was last amended in 1988, while that of Citizenship last got a second look in 1972.
When it comes to issues of Malawian citizenship, The Citizenship Act clearly stipulates the grounds through which one becomes a citizen of the Republic. These include citizenship by birth, by descent, by marriage, by registration, by conferment, and dual citizenship of minors (though those under this citizenship will have to choose one country at the age of 21, failing which they lose their Malawian citizenship, and can only get it by making an application for Restoration).
The closest a foetus came to ‘getting’ Malawian citizenship is the citizenship by birth clause; unfortunately, the unborn is just that- not yet born or there.
Says Kakatera: “Citizenship by birth means the time we can actually see the child.”
This, too, is the definition of birth in the Oxford Learner’s Dictionary, New 7th Edition. Birth is defined as “the time when a baby is born; the process of being born (labour)”.
It seems that the unborn child’s place in both law and society is evasive. Take, for instance, the issue of primitive African society.
Before the Partition of Africa in the late 1880s, African society was highly organized, with especially effective systems in conflict resolution. However, records specifying the common types of disputes settled render no mention to issues of abortion.
It is a practice adopted by organizations who want that traditional set up, where more power was concentrated in the hands of chiefs, back. No wonder, such districts as Mwanza in Southern Malawi are running Primary Justice programmes under the guidance of the Catholic Commission for Justice and Peace.
Association for Progressive Women’s (APW) Acting Executive Director, Noel Msiska, is the coordinator of the Primary Justice programme- which draws traditional leaders, the District Commissioner, Civil Society Organisations, NGOs , and community members together- in Mwanza.
Msiska confesses: “Ever since we started running the programme (some four years ago), we have never heard of chiefs settling community issues to do with abortion.”
Of the many cases Msiska and others have witnessed being settled at local level are those of land grabbing, pregnancy denials, vandalism of property, “but not abortion. And, in all cases, the disputes were settled, and the community members involved made peace and friends, and lived without any remnants hatred at all”.
This, says Msiska, shows that the primary justice system remains “humane” as it builds relations and promotes peace. The formal justice system, on the other hand, still strikes one as punitive. That is why it throws people away (in jail) instead of reconciling them with society, he says.
In Neno, a neighbouring district to Mwanza, the situation is the same: the formal justice system also throws the offender away. The only difference, says Traditional Authority Chekucheku, is that, even when the under-aged girl decides to keep her pregnancy and delivers safely, the child lives the life of a “dead” individual.
“By dead, I mean two things. The first one is that these children are treated as outcasts in rural communities, and this affects their participation in community activities. It is like they are obscure. Secondly, these children do not use their actual father’s surname but will inherit that of the ‘adopted’ father. It is like adopting a false identity and living a life of pretence.”
These practices contradict Section 23, sub-sections 1, 2, 3 and 4 of the Republican Constitution. Subsection 1 says, for instance, that “All children, regardless of the circumstances of their birth, are entitled to equal treatment before the law”, followed by sub-sections 2 and 3, which say that “all children shall have the right to a given name and a family name and the right to a nationality”, and that “children have the right to know, and to be raised by, their parents”.
Chekucheku acknowledges, as expected, that he has never resolved community issues bordering on abortion. This dry status of pregnancy-resignation issues could be an indication that laws dealing with abortion were either imposed by colonial administrators or are not ‘important’ enough in the ‘normal’ Malawian set up.
“Cases of incest are common in the village, though the parties involved never bring such issues to the attention of the chief because the offending man’s wife is always afraid of losing material and financial help. If a close relative forces himself on a girl, family members shield the real perpetrator and ‘impose’ the pregnancy on an innocent, unsuspecting youth, who may be forced to drop out of school to fend for his new family,” says Chekucheku.
The one striking factor about incest is that it, somehow, collides with the right to education. That is what Dr. Pierson Ntata and other social researchers found some six years ago. In a Centre for Social Research- a Department at Chancellor College- research on the effects of violence against girls on education, it was found that 60 percent of forcible sex cases occur at home.
Dr. Ntata and other researchers also found that relatives (uncle, cousin, brother in law) accounted for 5 per cent of perpetrators of forcible sex. The surprising factor was that only half of these cases were reported to teachers, friends, relatives, head teachers, and parents. There is no mention of police, apparently because people take ‘serious’ issues to people they know and those likely to initiate reconciliation.
That could explain why, while abortion remains illegal in Malawi, it is, somehow, tolerated by society. Perhaps this attitude could one day lead to the decriminalization of abortion, steps already taken by Tunisia in 1965, Cape Verde in 1985, South Africa in 1996 and, most recently in 2005, Ethiopia. Benin, Burkina Faso, Chad, Guinea and Togo have reviewed their national laws to allow abortion in cases of threats to physical health, rape, incest and foetal impairment.
Observers say, however, that instituting favourable laws does not always produce the desired results. They point at Botswana, Zambia, Zimbabwe and Ghana with perplexed minds and say, while good laws abound, women still die from unsafe abortions due to inaccessibility of safer services.
But, at least, they have paved the way towards preventing the death of 35,000 women who die, according to the World Health Organisation (WHO), out of the five million who carry out unsafe abortions annually. On average, 100 women die from unsafe abortions each passing day.
WHO statistics fault restrictive abortion laws for high abortion-related mortality. This relationship is established by looking at East Africa and some parts of West Africa, regions loathed for their most restrictive abortion laws. These regions record the highest death rates from unsafe abortions.
For Malawi, unfortunately, adolescents contribute a significant number towards hospital admissions, according to pan-African abortion rights group, Ipas Africa Alliance.
“With limited access to contraceptives and safe abortion, women- especially young women and girls- have no option but to resort to unsafe abortions. Studies in various countries, including Kenya, Malawi, Uganda and Zambia, show that adolescents make up a significant number of unsafe abortion-related hospital admissions- many of which result in death,” reads part of an Ipas Africa Alliance report.
This is a slap in Africa’s efforts over the past decade- where major world conferences on women’s reproductive rights have always come to the same conclusion: unsafe abortion is a huge public health crisis and violation of human rights. Human rights, for a start, are guarantees against degradation of one’s dignity and integrity.
Reproductive rights, on the other hand, offer couples and individuals the discretion to decide freely and responsibly the number, spacing and timing of children; the right to attain the highest standard of sexual and reproductive health; and the discretion to effect decisions regarding reproduction free of discrimination, coercion or violence. For these rights to be enjoyed, individuals need full, correct information and education on contraceptive methods and sexuality, protection of privacy, and; access to health services, among others.
These can be fully enjoyed only if governments, including Malawi, respect provisions of the Additional Protocol on the Rights of Women to the African Charter on Human and People’s Rights, adopted by Heads of Government of the African Union in 2003; the Maputo Plan of Action adopted in 2006 by African Union Ministers of Health, and incorporated into the Overall Continental Strategy.
It commits governments to addressing death and injury from unsafe abortion by taking action to “enact policies and legal frameworks to reduce the incidence of unsafe abortion”.
These recent steps will power the will already generated through the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; 1993 Vienna Declaration and Programme of Action; the 1994 International Conference on Population and Development Programme of Action held in Cairo, Egypt; the 1995 Fourth World Conference on Women and Beijing Platform; and the International Conference on Population and Development held in 1999 in Cairo, Egypt.
All this paperwork portrays attempts at criminalizing abortion as a kind of morality binge as opposed to rational stance.
Those advocating for legalization of abortion are doing the work in the hope that they are working for history, and not prevailing/current sentimentalism. Age-old knowledge that pregnancy is not merely a phase but a permanent feature in women’s lives is also playing in favour of unlimited women’s reproductive rights’ advocates.
Respect for human rights is an accurate mirror of Malawian society.
Legalizing abortion, or at least formally acknowledging that circumstances exist where abortion is a matter of necessity and not choice, will naturally lead to consensus that pro-abortion campaigns are neither to much for a progressive woman to ask, not too much for advocates of a democracy to give.
To surmise that the war against abortion has been won is to believe, in the face of growing outcries, the optimists who have been wrong in the past. To suggest that the debate can be suppressed is to yield to unreasonable pessimism. To claim that the advocates are in minority it to rush into unsettled conclusion.
The debate on abortion obliterates the distinction between emergency and normalcy. It is simply timely.
What is happening on abortion is not strange. With many changes taking place across social, economic spheres, analysts are holding out the hope of a vast moral regeneration they claim is always embedded/or inherent within the act of change (revolution) itself.
Change may either be difficult, or easy, to defeat based on means through which it occurs. Mainly, change comes in two forms: through imitation or through innovation.
Change that originates from imitation- often happening when an individual or members of a group observe that another person or group is using a new means successfully- is more difficult to suppress than that inspired by innovation because products of innovation lack the benefit of proven history.
That (change by imitation), coincidentally, is the case with the issue of abortion. It has been there, on the world stage, debated and examined like a new piece of terrorism gadget. In Africa, countries such as Kenya have gone half a step towards legalizing it wholesale by allowing it in cases where the woman is in danger. People are now raising questions about the real meaning of the word ‘inalienable’ , that it means no one (not even lawmakers) select what parts to pick out, and which ones are hands-off zones.
Inalienable simply means you accept one, you embrace all. Fortunately, the prevailing debate on rights and justice govern the acceptability of various possible types of citizen choices/practices/ action. As international rights protocols come to be invested in (ratified), and sometimes guaranteed by, the national state, acceptance of hitherto unacceptable practices/concepts themselves becomes nationalized.
Psychological writers like Stanley Milgram have argued in the book ‘obedience to authority’ that no action (including the getting rid of pregnancy) of itself has an unchangeable psychological quality: its meaning can be altered by placing it in particular contexts. In this case, such contexts including medical attempt at saving the life of the woman, preservation of physical and mental health, rape and incest, foetal impairment, and economic or social reasons.
The Ministry of Health’s mandate to administer health services is difficult to perform in the darkness that shrouds pregnancy termination matters. The darkness provides a lee-way to non-professionals who cash in on desperate women, and the threat of the law encourages anonymous deaths or serious health impairments including fistula in teenage parents.
Others, perhaps many, may not be caught in the act to tussle against the law; they then live seemingly productive lives, though traces of ruined lives lie strewn across the mat of 40 years since independence- years of no care. These traces are visible in such social-diseases as fistula (for those who are forced to keep the unborn in fear of the law, and deliver the still-born.
And the warnings posted in newspapers are too late for some of the girls who might have fallen prey to fistula. It is too late for the many who die in the process of saving themselves.
Complications are hugely expensive. And, because the girl patient will more likely seek medical attention from public hospitals, their bills are footed by the very society that neglected them. With the cost pinch, many patients cannot afford private medical facilities.
Fairness, is it, incarcerating the citizen for the sake of the unknown ‘citizen’?
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