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An Appraisal of Abortion Laws in Southern Africa from a Reproductive Health Rights Perspective

Published online by Cambridge University Press:  01 January 2021

Charles Ngwena
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Extract

The World Conference on Human Rights (the Vienna Conference) that was held in Vienna in 1993, marked an important beginning in the recognition of reproductive and sexual rights as human rights. Among other goals, the Vienna Conference sought to end gender discrimination in all its manifestations; gender-based violence, sexual harassment, and sexual exploitation. However, the turning point for the development of reproductive and sexual rights was the consensus that emanated from the International Conference on Population and Development held in Cairo in 1994 (the Cairo Conference), and the Fourth World Conference on Women in held in Beijing 1995 (the Beijing Conference) as evidenced by the programs for action that were adopted.

The Cairo Conference defined reproductive health as “a state of complete physical, mental and social well-being and not merely the absence of infirmity, in all matters relating to the reproductive system and to its functions and processes.”

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 32 , Issue 4 , Winter 2004 , pp. 708 - 717
Copyright
Copyright © American Society of Law, Medicine and Ethics 2004

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References

Report of the World Conference on Human Rights, 14–25 June 1993, UN Doc. A/CONF/157/23.Google Scholar
Nations United, Population and Development, Programme of Action Adopted at the International Conference on Population and Development, Cairo, 5–13 September 1994 (New York: United Nations, Department for Economic and Social Information and Policy Analysis: 1994); Cook, R. J., Dickens, B.M. and Fathalla, M.F., Reproductive Health and Human Rights (Oxford: Clarendon Press, 2003): at 4, 11–12.Google Scholar
United Nations, Department of Public Information, Platform for Action and the Beijing Declaration. Fourth World Conference on Women, Beijing, China 4–15 (New York: UN 1995).Google Scholar
Cairo Conference, supra note 2, at paragraph 7.3.Google Scholar
Beijing Conference, supra note 3, at paragraph 96; Cook, et al, supra note 2, at 12.Google Scholar
Report of the Ad Hoc Committee of the Whole of the Twenty-first Special Session of the General Assembly-Overall Review and Appraisal of the International Conference on Population and Development, UN Doc.A/S-21/5/Add.1 (1999); Cook et al, supra note 2, at 149.Google Scholar
Report of the Ad Hoc Committee of the Whole of the Twenty-third Special Session of the General Assembly-Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action, U.N. Doc. A/S-23/10/Rev.1 (2000); Cook et al, supra note 2, at 149.Google Scholar
Cook, R.J., Dickens, B.M., and Bliss, L.E., “International Developments in Abortion Law from 1988 to 1998,” American Journal of Public Health 89 (1999): 579–586.CrossRefGoogle Scholar
Id. at 1.Google Scholar
Morgan, D. and Lee, R.G., Human Fertilization & Embryology Act of 1990 (London: Blackstone Press Limited, 1991): at 37.Google Scholar
Id.Google Scholar
Id.Google Scholar
Id.Google Scholar
Id.Google Scholar
World Health Organization, Unsafe Abortion: Global and Regional Estimates of and Mortality due to Unsafe Abortion (Geneva: World Health Organization 1998).Google Scholar
According to the World Health Organization, unsafe abortion is defined as a procedure for terminating unwanted pregnancy either by persons lacking the necessary skills or in an environment lacking minimal medical standards or both: World Health Organization, The Prevention of Unsafe Abortion (Geneva: World Health Organization 1992).Google Scholar
World Health Organization, supra note 15.Google Scholar
World Health Organization, supra note 15.Google Scholar
Region by region, the estimates for unsafe abortions in Africa are as follows: 1,900,000 for East Africa; 600,000 for Middle Africa; 600,000 for North Africa; 1,600,000 for West Africa; and 200,000 for Southern Africa: World Health Organization, supra note 15.Google Scholar
Communiqué from the “Action to Reduce Maternal Mortality in Africa” Regional Consultation on Unsafe Abortion. March 5–7, 2003, Addis Ababa, Ethiopia. Reproduced in African Journal of Reproductive Health 8 (2004): 99–101.CrossRefGoogle Scholar
Adopted 16 December 1966, G.A. Res. 2200 (XXI), U.N GAOR 21st Sess., Supp No. 16 at 49, U.N. Doc A/6316 (1966) (entered into force 3 January 1976).Google Scholar
Adopted 18 December 1979, G.A. Res. 34/180, U.N. GAOR 34th Sess., Supp. No 44 at 193, UN. Doc A/34/36 (1980) (entered into force 3 September 1981).Google Scholar
Cook, R.J. and Dickens, B.M., “Human Rights Dynamic of Abortion Law Reform,” Human Rights Quarterly 25 (2003): 1–59; Cook, et al, supra note 2, at 148–215.CrossRefGoogle Scholar
Beijing Conference, supra note 3 at para 106(i).Google Scholar
Beijing Conference, supra note 3 at para 106(k).Google Scholar
Angola, , Botswana, , Lesotho, , Malawi, , Mozambique, , Swaziland, , Tanzania, , Zambia, and Zimbabwe, : Osode, P., “The Southern African Development in Legal Historical Perspective,” Journal for Juridical Science 28, No 3 (2003): 1–9, at 3.Google Scholar
Id. at 2–4.Google Scholar
Id.Google Scholar
Gender and Development: A Declaration by the Heads of State or Government of SADC. at <http://www.sardc.net/widsaa/sgm/1999/sgm_genderdec.html> (Last visited Sept. 21, 2004)+(Last+visited+Sept.+21,+2004)>Google Scholar
Id.; Klugman, B., “Sexual Rights in Southern Africa: A Beijing Discourse or a Strategic Necessity,” Health and Human Rights 4, no. 3 (2000): 145–173 at 154.CrossRefGoogle Scholar
Declaration, supra note 29 at A i.Google Scholar
Declaration, supra note 29 at C i, ii.Google Scholar
Declaration, supra note 29 at H iv.Google Scholar
Declaration, supra at H vi.Google Scholar
Declaration, supra note 29 at H viii.Google Scholar
Declaration, supra note 29 at E.Google Scholar
Klugman, , supra note 30 at 155.Google Scholar
Ashton, H., The Basuto (Oxford: Oxford University Press, 1967): at 28.Google Scholar
Sai, F., “International Commitments and Guidance on Unsafe Abortion,” African Journal of Reproductive Health 8, no. 1 (2004): 15–28 at 21.CrossRefGoogle Scholar
Armstrong, A.L. and Nhlapo, R.T., Law and Other Sex: The Legal Position of Women in Swaziland (Mbabane: Mbabane Press 1985): at 116.Google Scholar
Poulter, S., McClain, W., Kaburise, J.B.K., Mugambwa, J. and Milazi, D., Law and Population Growth in Lesotho (Roma, Lesotho: Law and Population Project, Faculty of Law, National University of Lesotho): 45–61.Google Scholar
Id. at 45.Google Scholar
Id. at 45Google Scholar
Cook, R.J and Dickens, B.M., “The Injustice of Unsafe Motherhood,” Developing World Bioethics 2, no. 1 (2002): 54–81 at 73.CrossRefGoogle Scholar
Id. at 73.Google Scholar
Cook, R.J and Dickens, B.M., Abortion Laws of Commonwealth Countries (Geneva: World Health Organization 1979); Cook, R.J. and Dickens, B.M., “Abortion Laws in African Commonwealth Countries,” Journal of African Law 25, no. 2: 60–79.Google Scholar
Cook, and Dickens, (1979) supra note 46, at 12; Cook and Dickens (1981), supra note 46, at 61.Google Scholar
R. v Bourne 1 King’s Bench 687 (Central Criminal Court, London, 1938); Cook, and Dickens, (1979), supra note 46: at 8–9; Cook, and Dickens, (1981), supra note 46 at 61.Google Scholar
Cook, and Dickens, (1981) supra note 46 at 61–62; Strauss, S.A, Doctor, Patient and the Law (Pretoria: J.L. van Schaik 1984): 217–219, 219–224; Ngwena, C., “The History and Transformation of Abortion Law in South Africa,” Acta Academica 30, no. 3: 32–68 at 5.Google Scholar
Cook, and Dickens, (1981) supra note 46 at 5; Braam, T. and Hessini, L., “Ensuring Reproductive Choice, Saving Women’s Lives.” Unpublished paper presented at A Regional Consultation on Unsafe Abortion: Action to Reduce Maternal Mortality in Africa (Addis Ababa, Ethiopia, March 5–7, 2003).Google Scholar
Knoppers, B.M., Brault, I. and Sloss, E., “Abortion law in Francophone Countries,” The American Journal of Comparative Law 38, no. 4 (1990): 889–922, at 893–894.CrossRefGoogle Scholar
Id. at 894.Google Scholar
Braam, and Hessini, , supra at 50.Google Scholar
Cook, and Dickens, , supra note 44, at 73.Google Scholar
Id. at 73–74.Google Scholar
The Population Policy Data Bank maintained by the Population Division of the Department of Economic and Social Affairs of the United Nations Secretariat. Angola Policy, at <www.un.org/esa/population/publications/abortion/doc/angol1.doc> (Last visited Sept. 21, 2004).+(Last+visited+Sept.+21,+2004).>Google Scholar
Libombo, A., “Mozambique Abortion Situation.” Unpublished conference paper presented at Expanding Access: Midlevel Providers in Menstrual Regulation and Elective Abortion Care (South Africa, December 2001).Google Scholar
Id.Google Scholar
Id.Google Scholar
Johnson, B.R., Ndlovu, S., Farr, S.L. and Chipato, T., “Reducing Unplanned Pregnancy and Abortion in Zimbabwe Though Postabortion Contraception,” Studies in Family Planning 33, no, 2 (2002): 195–202 at 195.CrossRefGoogle Scholar
Zimbabwe Ministry of Health and Child Welfare (ZMOH), Health Statistics Annual Reports (Harare, Zimbabwe: ZMOH 1994).Google Scholar
The Center for Reproductive Health Law and Policy, Women in the World: Laws and Policies Affecting their Reproductive Lives (New York: The Center for Reproductive Health Law and Policy 2001): at 137.Google Scholar
Id.Google Scholar
Johnson, et al, supra note 60.Google Scholar
Sarkin-Hughes, J. and Sarkin-Hughes, N., “Choice and Informed Request: The Answer to Abortion,” Stellenbosch Law Review 1, no 3 (1990): 372–387, at 372; Hansson, D. and Russell, D.E.H., “Made to Fail: The Mythical Option of Abortion for Survivors of Rape and Incest,” South African Journal on Human Rights 9, no. 4 (1993): 500–524.Google Scholar
Ngwena, , supra note 49.Google Scholar
Haroz, A.E., “South Africa’s 1996 Choice on Termination of Pregnancy Act: Expanding Choice and International Human Rights to Black South African Women,” Vanderbilt Journal of Transnational Law 30 (1997): 863–903.Google Scholar
Braam, and Hessini, , supra note 50.Google Scholar
Cook, and Dickens, (1981), supra note 46, at 73.CrossRefGoogle Scholar
The Population Policy Data Bank maintained by the Population Division of the Department of Economic and Social Affairs of the United Nations Secretariat. Abortion Policy at, <www.un.org/esa/population/publications/abortion/doc/zambia.doc> (Last visited Sept. 21, 2004).+(Last+visited+Sept.+21,+2004).>Google Scholar
The Population Policy Data Bank maintained by the Population Division of the Department of Economic and Social Affairs of the United Nations Secretariat. Abortion Policy at <www.un.org/esa/population/publications/abortion/doc/botswal.doc> (Last visited Sept. 21, 2004)+(Last+visited+Sept.+21,+2004)>Google Scholar
Braam, and Hessini, , supra note 50.Google Scholar
Ngwena, , supra note 49.Google Scholar
Unofficial estimates put the number of illegal abortions much higher at 120,000 per year: South African Institute of Race Relations, South Africa Survey 1996/97 (Johannesburg: South African Institute of Race Relations 1997): at 492.Google Scholar
Reproductive Rights Alliance, “National Statistics,” Barometer 1, no.1 (1997): at 4.Google Scholar
Engelbrecht, M.C., Pelser, A.J., Ngwena, C. and Van Rensburg, H.C.J., “The operation of the Choice on Termination of Pregnancy Act: Some Empirical Findings,” Curationis 23, no. 2 (2000): 4–14; Ngwena, C., “Accessing Abortion under the Choice and Termination of Pregnancy Act: Realising Substantive Equality,” Journal for Juridical Science 23, no. 3:19–44.CrossRefGoogle Scholar
Section 12(2) of the Constitution of the Republic of South Africa Act No 109 of 1996 (the Constitution).Google Scholar
1998 (4) SA 1113 (T).Google Scholar
Ngwena, C., “Access to Health Care as a Fundamental Right: The Scope and Limits of Section 27 of the Constitution,” Journal for Juridical Science 25, no. 1 (2000): 1–32.Google Scholar
The African Charter was adopted by the 18th Assembly of the Heads of State and Government of the Organization of African Unity (now African Union) on 17 June 1981. It came into force on 21 October 1986.Google Scholar
CESCR, General Comment 14, UN ESCOR, 2000, Doc. No. E/C. 12/2000/4.Google Scholar
Cook, et al, supra note 2 at 11–33.Google Scholar
Cook, et al, supra note 2 at 26–28.Google Scholar
World Health Organization, supra note 15.Google Scholar