For women in East Africa, the only legal right to abortion rests on a 1938 precedent from England that says a doctor can perform one if it saves a woman’s life.
For 80 years, East African nations, including Kenya and Uganda, have relied on this colonial ruling, which is no longer the law of the land in England. Women in England can legally access abortion before 24 weeks. Yet in countries, including Kenya and Uganda, the more restrictive 1938 decision remains the basis for the law.
If we want women and girls to reach their full potential, we must stop policing maternity and start providing comprehensive sex education that gives young people the information they need to make good choices. Criminalising abortion and restricting sex education do nothing to prevent teen pregnancy or the spread of sexually transmitted disease.
Uganda has the highest rates of teenage pregnancy in the East African region, with an estimated 25 per cent of girls getting pregnant before the age of 18, according to Uganda’s 2016 Demographic Health Survey. The numbers are not much better in neighbouring countries.
Yet the government’s response has been to ban sex education in and out of school. Uganda’s Ministry of Gender, Labour and Social Development has said sexuality education should not be given to young people in and out of school until the Ministry of Education passes a policy on sexuality education. We are still waiting for this policy.
In Tanzania, President John Magufuli passed a directive in 2017 to arrest pregnant girls in school, along with their parents. The Tanzanian minister for Home Affairs has since warned civil society organisations advocating for sexuality education to abandon the issue or face deregistration.
Restricting access to sex education and abortion services is a matter of life and death in these nations. Burundi registers 712 maternal deaths per 100,000 live births.
Tanzania and Kenya each recorded more than 500 maternal deaths per 100,000 live births. The numbers are not quite as grim in Uganda and Rwanda, but still well above the global average of 216 per 100,000 births, according to Unicef.
Unsafe abortions contribute at least 25 per cent of these deaths. We could reduce that figure with effective comprehensive sex education, provision of family planning and legal, safe abortion services.
Women and girls in East Africa are also contracting sexually transmitted diseases at an alarming rate. About 7 per cent of women aged between 15 and 24 years are infected with HIV/Aids, four times more than young men in similar age brackets.
The United Nations Committee on Elimination of Discrimination Against all forms of Discrimination against Women (CEDAW) has said criminal regulation of abortion serves no known deterrent value. When faced with restricted access, women often engage in clandestine abortions, risking their life and health.
Additionally, criminalisation has a stigmatising impact on women, and deprives women of their privacy, self-determination and autonomy of decision. This constitutes discrimination against them on the basis of their gender. We know the current approach of banning sex education isn’t working.
The United Nations Educational, Scientific and Cultural Organisation (Unesco) recommends that governments provide comprehensive sex education. Unesco notes that when young people are given age-appropriate, scientifically and culturally accurate, non-biased information on how to manage sexuality, unintended pregnancies reduce, sexually transmitted diseases such as HIV/Aids are reduced, abortions and costs involved are avoided, and young people can make informed decisions on how and when to start families.
Unesco’s research shows that teaching sexuality does not increase young people’s sexual activity. Yet we continue to hear the argument that sex education will lead to a decline in morals. The evidence does not support this. In fact, science shows that sex education encourages young people to delay sexual activity.
As a lawyer involved in litigation on the right to healthcare in my home country, Uganda, I have seen how the laws on the books violate women’s rights. Doctors face impossible choices when they try to take care of pregnant women in distress.
If they perform an abortion, police can arrest them, and often their equipment is taken along as exhibits. Many times after arrest, they are arraigned before media, and publicly exposed for what is often termed a ‘heinous crime’. As a result of these arrests and media exposure, many health workers are reluctant to perform abortions or provide other health services to women.
It is important to reflect on our legal and policy systems as independent states, free from the outdated legal precedent of the colonial era.
Rather than putting in place legislation to force women to have children they do not want to carry, let us work on laws and policies to enable them to make independent, informed decisions regarding their bodies.
Ms Kwagala manages strategic litigation at the Centre for Health, Human Rights and Development in Uganda. She is a 2018 Aspen New Voices Fellow.