African Commission's "guidance" requires legalization of abortion
Thursday, February 19, 2015

A new effort is underway to force African countries that have ratified the Maputo Protocol to overturn laws that protect women and unborn children from the violence of abortion claiming such action is needed to ensure compliance with the abortion provision, Article 14, of the treaty. The African Commission on Human and People’s Rights monitors compliance with the treaty and issued General Comment No. 2 on Article 14.1 (a), (b), (c) and (f) and Article 14. 2 (a) and (c) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa [Maputo Protocol].

Commissioner Soyata Maiga, Special Rapporteur on the Rights of Women in Africa, issued the exhaustive pro-abortion General Comment 2 on behalf of the 11 member Commission stating:

-“The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) is the main legal instrument for the protection of the rights of women and girls in Africa. Article 14 of the Maputo Protocol guarantees women’s right to health, including sexual and reproductive health.”

-“Under Article 14 (2) (c) of the Maputo Protocol, States Parties are called upon to take all appropriate measures to ‘protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus’.”

-“It should be noted that the Maputo Protocol is the very first treaty to recognize abortion, under certain conditions, as women’s human right which they should enjoy without restriction or fear of being prosecuted.

The African Commission on Human and Peoples’ Rights (the African Commission) welcomes the ratification of this important instrument by the majority of AU Member States. However, the African Commission notes that many countries are yet to undertake the necessary legislative reforms towards domesticating the relevant provisions, including in the area of women’s sexual and reproductive rights. As such, in many States Parties, there is still limited access by women and girls to family planning, criminalization of abortion, and difficulties faced by women in accessing safe and available abortion services, including in cases where abortion is legalized.”

-“The African Commission wishes to express its gratitude to Ipas Africa Alliance for its valuable contribution on all issues relating to sexual and reproductive rights and its technical support towards the preparation of the General Comment.” [Ipas is an NGO that performs abortions, lobbies for abortion legalization, and trains health personnel in abortion techniques.]

Lawmakers in the 36 countries that have ratified the treaty are among the targets of the General Comment according to Ipas, General Comment No 2 will help policymakers and advocates shape laws, policies and practices to comply with the Protocol—which is the only international human rights treaty that recognizes a discrete  right to abortion (under Article 14).  The Protocol has been ratified by more than two-thirds of the 54 member states of the African Union.”

The 10 members of the Commission who approved the Comment, cast national laws against abortion as “discriminatory” and refer to cherished religious and cultural beliefs as “barriers”.

Such controversial language is usually reserved for publications by pro-abortion NGOs but given the “valuable contribution” of pro-abortion provider and abortion trainer Ipas, it is not surprising.  What is surprising is the discounting of national laws by the Commission which is responsible to the member states of the African Union, many of which restrict abortion.

General Comment 2 is shocking given it is issued to countries with high newborn, child, and maternal mortality where mothers continue to give birth unassisted and have limited access to health care, including access to clean blood for the treatment of blood loss, the leading cause of maternal mortality and a major complication from abortion.

The Comment reads like a pro-abortion guidebook and begins with a background section that denigrates religious and cultural beliefs:

“In Africa, the persistence of several forms of discrimination based on, but not limited to, ethnicity, race, sex, gender, age, marital status, HIV status, sexual orientation, socioeconomic status, disability, geographic residence, legal residence and/or traditional, religious and cultural beliefs prevents women from exercising and enjoying their sexual and reproductive rights.”

Belief in the sanctity of life which inspires laws against abortion is considered to be a “barrier”:

“25. The right to health care without discrimination requires State parties to remove impediments to the health services reserved for women, including ideology or belief-based barriers. Administrative laws, policies and procedures of health systems and structures cannot restrict access to family planning/contraception on the basis of religious beliefs.”

Despite the large number of faith-based organizations providing vital health care services in Africa, the General Comment denies them freedom of conscience: “State parties must ensure that only the health personnel directly involved in the provision of contraception/family planning services enjoys the right to conscientious objection and that it is not so for the institutions.”

The broadest and most pro-abortion interpretation of health is advanced:

“When assessing the risks to a pregnant woman’s health, health must be interpreted according to the WHO definition, namely: "state of complete physical, mental and social well-being and not merely the absence of disease or infirmity". The reasons put forward by the woman seeking an abortion must be taken into account, and States are required to ensure that the legal frameworks in place facilitate access to medical abortion when the pregnancy poses a threat to the health of the pregnant mother.”

Four general obligations are imposed on State parties to “respect, protect, promote and fulfill rights”. The Commission instructs the 35 State parties to the Maputo Protocol that these are their obligations and they must report on their progress to the Commission during periodic reviews: “The reports must take into account this General Comment and comply with the guidelines adopted by the African Commission for that purpose.”

Under “respect rights” the Commission demands that that a state must ensure that women are “duly informed on family planning/contraception and safe abortion services, which should be available, accessible, acceptable and of good quality.”

The Commission dismisses parental or spousal consent by declaring that a state’s responsibility to “protect” must include  the necessary measures to prevent third parties from interfering with the enjoyment of women’s sexual and reproductive rights…’including but limited to, parents, guardians, spouses and partners.’ ”

In order to promote such rights, State parties are obliged “to create the legal, economic and social conditions that enable women to exercise their sexual and reproductive rights with regard to family planning/contraception and safe abortion, as well as to enjoy them. An essential step towards eliminating stigmatization and discrimination related to reproductive health includes, but is not limited to, supporting women's empowerment, sensitizing and educating communities, religious leaders, traditional chiefs and political leaders on women’s sexual and reproductive rights as well as training health-care workers.”

The obligation to fulfill rights seeks state funding and “requires that State Parties adopt relevant laws, policies and programs that ensure the fulfilment de jure and de facto of women’s sexual and reproductive rights, including the allocation of sufficient and available resources for the full realization of those rights.”

The Commission expects government to remove laws against abortion in Section 46:

“State parties should provide a legal and social environment that is conducive to the exercise by women of their sexual and reproductive rights. This involves revisiting, if necessary, restrictive laws, policies and administrative procedures relating to family planning/ contraception and safe abortion in the cases provided for in the Protocol, as well as integrating the provisions of the said legal instrument into domestic law.”

Education of youth on “sexual and reproductive rights issues” is also included as a ‘must do’ and the Commission again discounts freedom of conscience:

“52. In addition, State parties must ensure that educational institutions at primary, secondary and tertiary levels include sexual and reproductive rights issues in their school programs and to take the necessary measures so those programs also reach women in private schools, including faith-based schools, as well as those out of school.”

Ipas oversaw a self-serving measure to remove restrictions on its abortion training business and that of other pro-abortion organizations in section 58:

State parties should avoid all unnecessary or irrelevant restrictions on the profile of the service providers authorized to practice safe abortion and the requirements of multiple signatures or approval of committees, in the cases provided for in the Protocol. In many African countries, there are not enough trained physicians available. Mid-level providers such as midwives and other health workers should be trained to provide safe abortion care.”

PNCI will continue to monitor this new attempt to usurp the sovereign right of African countries to respect the innate dignity of life beginning at conception.