AN ANALYSIS OF THE BILL ENTITLED SAFE ABORTION ACT 2015 – By Mariama Dumbuya Barrister & Solicitor Notary Public & Commissioner
February 3rd, 2016
His Excellency the President, Dr Ernest Bai Koroma
RE: AN ANALYSIS OF THE BILL ENTITLED SAFE ABORTION ACT 2015 – THE BITTER PILL WE MUST SWALLOW IN THE NAME OF FAIRNESS, PROGRESS AND JUSTICE AND THE CASE FOR IT TO BE PASSED INTO LAW.
It is with utmost respect that I write to you as President of the Republic of Sierra Leone and the Fountain of Honour and Justice.
I write in my capacity as a citizen of Sierra Leone and more importantly a Sierra Leonean woman with two children. I have examined the law and write from the prism of woman.
Let me from the onset state that I treasure life. I value the formation of life and consider life to be sacred. The experience of giving birth remains one of the best moments of my life. So therefore, I do not support the unlawful taking of or loss of life.
I am however convinced that this Bill can be enacted into lawso that it can become legal for a pregnant woman in Sierra Leone to have an abortion legally notwithstanding certain recommendationswhich I will make hereunder (which can be addressed by and/or incorporated by the Ministry responsible for health as a condition for approval and as criteria for certification of a ‘Health Care Facility’ for the purpose of abortion services).
I hope that by going through key sections of the Bill relating to the Safe Abortion Act of 2015 and other related enactments, Your Excellency and all stake holders will become convinced to ensure the speedy passing of the Bill into an Act of Parliament within the shortest possible time.
Before making my case, there are a number of important facts that need to be taken into consideration when considering this issues. They are as follows:
- Each year in Sierra Leone, approximately 857 women die from pregnancy-related causes per 100,000 live births-giving it the fourth highest maternal mortality ratio in the world.
- Almost all deaths from unsafe abortion occur in developing countries, with African women facing the highest risk. According to the World Health Organisation, 650 deaths occur per 100,000 unsafe abortions procedures in Africa, compared with only 10 in developed regions.
- It must be re-iterated here that the maternal health indicators of Sierra Leone are among the worst in sub-Saharan Africa.
- However the annual report of the Ministry of Health and Sanitation states that unwanted pregnancies and unsafe abortions are high where abortions reported at some major hospitals contribute to 13% of maternal mortality.
- Overall one in eight women risk dying during pregnancy and more than a quarter of that number are as a result of unsafe abortions. This is one of the highest maternal deaths in the world.
- The termination of pregnancy related complications represent on average 50% of emergency admissions in referral maternities in Sierra Leone. Of the direct causes of maternal deaths, complications due to unsafe abortions rank fourth.
- In fact 20% of maternal deaths are caused by unsafe abortions. These deaths are according to experts, unnecessary and medically preventable. The common practice is that the women tend to seek abortion services outside the health system in Sierra Leone.
- Key provisions of the Bill
Your Excellency, It is important to note that the Bill did not give a blanket approval for abortion in every given case regardless of the stage of pregnancy.
The Bill provides as follows:
“if requested by a pregnant female after counselling using World Health guidelines (Herein after called ‘’WHO’’) in the following cases.
Specifically during the following periods:
- During the first twelve weeks of pregnancy of a female who so request after counselling using WHO Standards
- From the 13th weeks up to the 24th weeks of pregnancy when requested by a pregnant female after counselling in the following instances;
- The continuation of then pregnancy will pose risk of injury to the female’s health
- There is a risk of fetal abnormality
- According to the pregnant female she became pregnant from rape, incest or other felonious intercourse.”
If requested by the pregnant female
The provision that the request comes from the pregnant mother guarantees the freedom of thought as provided by our Constitution. The pregnant mother cannot be forced by anyone to so request or undergo an abortion. This is important for those detractors who envisage parents or husbands impulsively frog matching their children or wives to hospitals and health clinics to undergo such a procedure.
During the first twelve weeks of pregnancy of a female who so request after counselling using World Health Organisation Standards.
The above provision does not give blanket consent to the pregnant female because she must receive counselling using the WHO standards.
Your Excellency, it is a well-known fact that at present, abortions are performed every day in Sierra Leone regardless of the provisions of the law. The current law is honoured more in its breach than its observance. Those who can afford it go to qualified doctors. The vast majority who cannot afford it go to the unqualified and quack doctors. It is my humble opinion that it is better to regularise the current situation when illegal abortion is rampant in a manner that will reduce the number of abortions done illegally and certainly in a manner contrary to universal abortion standards. By legalising the limited form abortion, we will be able to focus and better regulate the pregnant female who undergoes unsafe abortion.
- The right to life
Section 16 (1) of the Constitution of Sierra Leone provides that ‘No person shall be deprived of his life intentionally except in execution of the sentence of a court in respect of a criminal offence under the laws of Sierra Leone, of which he has been convicted.’
Although there is no agreement in medicine, philosophy or theology as to what stage of foetal development should be associated with the right to life, it is my humble submission that there is a consensus of opinionagree that a foetus cannot survive outside the uterus at 12 weeks.
The foetus up to first 12 weeks cannot be deemed to be ‘’life ‘’as defined in section 16 thereof. Experts have proved that up to the first 12 weeks gestation is taking place and though organs may be forming the foetus cannot be deemed to be ‘’life’’. The fact is that life is in formation but not life itself. It is therefore fair and just to allow a pregnant female to abort after counselling.
Your Excellency, I humbly submit in the light of the aforesaid that aborting a foetus up to the first 12 weeks does not fall within the definition of ‘’life’’ within section 16 of our Constitution.
Our current abortion law was inherited from the United Kingdom. Yet the UK, has moved away from this position. Current UK legislation states that an abortion must be carried out during the first 24 weeks of pregnancy – twice the time provided under our current Act. Guidelines state that the procedure should ideally be performed before 12 weeks. The current legislation bases its ‘upper limit’ on the survival rate of premature babies, which is significantly reduced prior to 24 weeks.The current state of English law (Abortion Act of 1967 and the Human Embroyology Act of 1990)
- From the 13th weeks up to the 24th weeks of pregnancy when requested by the pregnant female after counselling.
In this second limb, the Bill restricts instances in which abortion will be permitted as follows:
- 1) Continued pregnancy poses a risk to health
- 2) There’s risk of foetal abnormality
- 3) According to the pregnant female the pregnancy resulted from rape, incest or other felonious intercourse.
I fully endorse these exceptions. As stated above, I strongly believe that the right to life is sacred. However, in the interest of justice and in certain grave and dangerous cases the above instances should be accepted as exceptions.
Why should a woman who has been raped, involved in an incestuous relation or became pregnant as a result of a felonious intercourse, be made to suffer twice? It is very likely that the circumstances will be disastrous for both the mother and the child. The woman was stripped of her choice once when raped, she should not be stripped of her choice a second time by allowing her to give birth to baby of the rapist.
Section 4 of the Sexual Offences Act No 12 of 2012 provides that a person below the age of 18 is not capable of giving consent. Section 5 of the same Act provides that marriage to the victim of rape is not a defence under the Sexual Offences Act. This Bill will make it legal for the victim of rape to lawful undergo abortion and prevent her from suffering from immense psychological and emotional trauma that she has to undergo as a result of the abortion.
- Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa
Article 14 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa deals with Health and Reproductive Rights. It states that
‘1. States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted. This includes:
a) the right to control their fertility;
b) the right to decide whether to have children, the number of children and the spacing of children;
c) the right to choose any method of contraception;
f) the right to have family planning education.’
The Protocol calls for the sexual and reproductive rights for woman to respected and promoted this includes the right to decide whether to have children, the number of children and the spacing of children.
Earlier this year, the African Commission on Human and People’s Rights (ACHPR) through the mechanism of the Special Rapporteur on the Rights of Women in Africalaunched a continental campaign for the decriminalization of abortion in Africa. According to the World Health Organization (WHO), unsafe abortion continues to be a major cause of maternal deaths and injuries in Africa. The press release issued at the launch of this campaign states ‘Roughly 47,000 women die each year from complications from unsafe abortion and nearly two thirds of those deaths occur in Africa. The WHO estimates that over 6 million unsafe abortions occur in Africa resulting in 29,000 deaths and countless serious injuries and disabilities every year for poor, mostly rural based African women and girls under the age 25.’The Commission is working to ensure that that African countries adhere to their commitments under the African Charter on Human and People’s Rights and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol); the Maputo Plan of Action; and the Campaign for the Accelerated Reduction of Maternal Mortality in Africa (CARMMA).
I will take the liberty of make a few proposals(which can be addressed by and/or incorporated by the Ministry responsible for health as a condition for approval and as criteria for certification of a ‘Health Care Facility’ for the purpose of abortion services).
- Two certified medical practitioners must issue a certificate before abortion is approved.
- Counselling should be provided not just for persons undergoing an abortion but also for the parent or guardian of pregnant female below the age of 18 years.
- That section 2(b) (i) amended to specify the type of injury to the pregnant female’s health (example ectopic pregnancy) that will make the pregnant female be entitled to abortion pursuant to the said section.
- That section 2 (b) (ii) be amended to specify the type of foetal abnormality should be of the grave type wherein the foetal will pose danger to the life of the mother and/or the child born will be gravely abnormal to live a reasonable manageable life.It should only be permitted in the case of extreme fatal abnormality.
- That the fine and /or imprisonment stated in all the sections therein may be reviewed at a later stage after the passing of the Bill into law t to reflect longer jail term and heavy fines.(This can come in as an amendment after the Bill would have been passed into law and practised and the effectiveness of implementation is building momentum)
I further recommend to the Constitutional Review Committee that abortion in the above circumstances to be guaranteed as a right in the new constitution.
In conclusion, I will urge your Excellency and the Honourable Members of Parliament to do their utmost to enact into law the Bill entitled Safe Abortion Act. In addition, there will be need to ensure that if passed the provisions of the law will be strictly enforced and adhered to, otherwise there will be little or no change in the status quo.
Barrister & Solicitor
Notary Public & Commissioner for Oaths
- Honourable Ministers
- Honourable Members of Parliament
- The Chair and other members of the Constitutional Review Committee
- The Head of the Inter-Religious Council and all other Religious Leaders
- S.L. Bar Association
- Civil Society Activist, Media etc