Malawi commended after court backs minors’ right to safe abortion
Malawi has taken a significant step toward protecting the rights and dignity of minors impregnated through sexual violence following a landmark High Court ruling granting them the right to access safe abortion services.
The development has been welcomed by reproductive health advocates and progressive faith leaders who say the judgment aligns with the country’s legal obligations and long-standing religious principles that prioritize preservation of life.
In late October this year, Justice Michael Tembo ruled in favour of a brave 14-year-old rape survivor, identified in court as AC, who sued the Ministry of Health and a clinician at Chileka Health Centre under Section 19 of the Gender Equality Act after being denied an abortion in 2022.
By refusing her access, the state not only violated the Gender Equality Act but also international treaties such as the Maputo Protocol and CEDAW, which recognize access to safe abortion in cases of rape as a human rights obligation.
Beyond awarding AC damages for the mental anguish she suffered for carrying the pregnancy longer than necessary, Justice Tembo directed the Ministry of Health to amend the Post-Abortion Care Guidelines within 180 days to ensure minors in similar circumstances can obtain safe abortion services without barriers.
The ruling has been described as a major victory for young girls impregnated through rape or defilement.
While official national statistics on pregnancy resulting from sexual abuse remain limited, the United Nations reports that one in three women in Malawi experiences physical or sexual violence in their lifetime, leaving many girls exposed to pregnancies they never consented to.
Reproductive health advocates have praised the court for upholding the law and human rights standards.
Nyale Institute for Reproductive Health Executive Director, Godfrey Kangaude, noted that the decision reinforces the obligation of authorities to protect girls who find themselves in such traumatic situations.
Family Planning Association of Malawi (FPAM) Executive Director, Donald Makwakwa, also welcomed the ruling, saying it reaffirms the constitutional right of women and girls to access safe abortion and post-abortion care, which for years has been undermined by restrictive interpretations of policy.
Faith Leaders Support Ruling and Call for Its Full Enforcement
In a strong and clear endorsement of the court’s decision, the Religious Leaders Network for Choice (RLNC) commended the ruling as a landmark step toward safeguarding minors subjected to sexual violence.
The Network said the decision reflects both the spirit of the Gender Equality Act and the teachings of faith traditions that permit abortion when the life or well-being of a pregnant woman or girl is in danger.
According to the Network, doctrines across major religions support life-saving interventions in circumstances like those faced by the minor in the case.
These include the Roman Catholic Church’s Doctrine of Double Effect, Islam’s Doctrine of Necessity, and the Situation Consideration teachings embraced by Protestant, Adventist, Baptist and Pentecostal denominations.
The Network stressed that mental health risks are legitimate grounds for protection within these faith traditions, and the court rightly recognized the survivor’s mental health risk as critical.
RLNC further highlighted that its members, through years of supporting survivors at One-Stop Centers across the country, have witnessed firsthand the trauma and psychological harm suffered by minors who endure pregnancies resulting from sexual violence.
The ruling, the Network said, acknowledges that the preservation of life includes safeguarding mental health, echoing both medical and religious principles.
The Network urged the Attorney General to ensure the ruling is fully enforced and encouraged Malawians to respect the independence of the Judiciary, noting that the judge based the ruling on legally relevant facts and the clear prescriptions of the Gender Equality Act.
RLNC reiterated that no child should be forced to carry a pregnancy conceived through violence and that as a nation, Malawi must stand with survivors and uphold their dignity.
Perspectives From Young People
Young people have also welcomed the judgment, seeing it as a vital protection for minors in crisis situations.
Some say it offers a safer alternative than the unsafe procedures girls often resort to when access is denied.
Others believe the ruling marks a turning point in how the country responds to reproductive health challenges affecting vulnerable groups, adding that protecting girls from the physical and psychological consequences of sexual violence is long overdue.
“I think allowing minors impregnated through rape or sexual violence access safe abortion is a way to go. I am saying this because this is not a pregnancy they wanted in the first place and they may end up hurting the child considering the mental anguish from how they conceived. Secondly, if denied access, they will seek unsafe procedures and they may end up losing their lives,” James Mhlanga, a Mzuzu resident said.
“For me, I think we need to expand the grounds to all unwanted pregnancies. Let women and girls be given freedom to choose, otherwise continuing to restrict them is not doing the country any good as they still resort to unsafe procedures that are dangerous,” Mercy Msiska said.
Malawi’s Restrictive Abortion Laws Persist
Despite this landmark ruling, Malawi’s abortion laws remain among the most restrictive in the region.
The Penal Code criminalizes the procedure except when performed to save a woman’s life and imposes penalties of up to 14 years in prison for those who perform or assist in unlawful abortions.
Other countries such as South Africa have more progressive frameworks, allowing abortion on request during the first 12 weeks.
Because of Malawi’s restrictive legislation, thousands of women and girls continue to seek unsafe abortions.
These procedures contribute significantly to the country’s maternal mortality burden.
As testified by Dr. Chisale Mhango in the AC case, complications from unsafe abortions are responsible for 79 deaths per 100,000 live births in Malawi.
Attempts to reform these laws through the Termination of Pregnancy Bill, drafted in 2015, have repeatedly stalled in Parliament.
However, with the High Court’s latest interpretation of the Gender Equality Act, advocates and supportive faith leaders say Malawi has an opportunity to align its laws and practices with both human rights standards and compassionate religious teachings that prioritize saving lives.
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