Malawi still divided despite court backing minors’ abortions
Malawians remain divided on abortion along moral, legal, and religious lines despite a landmark High Court ruling granting minors impregnated through sexual violence their right to access safe abortion services.
In late October this year, Justice Michael Tembo ruled in favor 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, for denying her an abortion after she was sexually assaulted in 2022.
By denying AC access to abortion, Malawi not only breached the Gender Equality Act, but also international treaties including the Maputo Protocol ratified by Malawi in 2005, which grants health and reproductive rights, and the Convention of the Elimination of all forms of Discrimination against Women (CEDAW) adopted in 1979 and entered into force in 1981, which considers that abortion bans without any exceptions for rape, amount to violation of State Party obligations.
In his ruling, apart from awarding AC damages for injury and loss from mental anguish she suffered for carrying the pregnancy longer than necessary, Justice Tembo ordered the Ministry of Health to amend the Post-Abortion Care Guidelines within 180 to ensure that minors in similar situations can access safe abortion services.
The ruling is a victory to young girls impregnated through sexual violence, who have been facing the burden of keeping such pregnancies due to limitations in law. While specific national data on the exact number or percentage of all pregnancies in Malawi that are a direct result of sexual violence are not readily available in published data, hundreds if not thousands are victims. For example, the United Nations reports that 1 in 3 women in Malawi experience physical or sexual violence in their lifetime.
Reproductive health rights advocates have hailed the ruling, describing it as a step towards aligning Malawi’s laws with its human rights commitments.
“This is a positive development as it now means that if an under 18 girl is impregnated in circumstances befitting sexual abuse, they are supposed to get assistance without questions. It took one brave girl to challenge the breach of statutory duties by authorities and we are happy with the outcome,” Godfrey Kangaude, Nyale Institute for Reproductive Health Executive Director, said.
On his part, Family Planning Association of Malawi (FPAM), Executive Director Donald Makwakwa said the ruling is a victory for justice, health, and human right.
“For too long, many women and girls in Malawi have suffered or lost their lives due to unsafe abortions resulting from restrictive interpretation of police. We commend the High Court for reaffirming the constitutional and human rights of women and girls to access safe post-abortion care,” Makwakwa said.
He added; “As an organization committed to advancing sexual and reproductive health and rights in Malawi, FPAM reiterates the importance of aligning national policies and guidelines with constitutional and human rights principles to protect the health, dignity, and lives of women and girls.”
But despite receiving positive reactions from reproductive health advocates, the ruling has drawn condemnation from the country’s major religious bodies, who have reaffirmed their opposition on the basis of their commitment to the promotion, protection, and sanctity of life, and to the natural family as ordained by God.
In a show of unity, the Malawi Conference of Catholic Bishops (MCCB), Malawi Council of Churches (MCC), Evangelical Association of Malawi (EAM), and the Muslim Association of Malawi (MAM) have issued a joint statement condemning the decision and signaling plans to push for an appeal.
“The mother bodies; stand united in expressing deep concern over the recent High Court judgment on abortion, which we believe sets a worrying precedent for the protection of both mothers and unborn children in our country, “the faith bodies said, in a statement..
They added; “We are consulting our legal counsel to explore appropriate steps in response to this development. At the same time, we are engaging with the government, through the Office of the Attorney General as the principal legal advisor to the Government and one of the defendants in the case to explore the possibility of appealing against the judgment.”
“We remain hopeful that the Government known for its respect for the cultural, moral, and religious values cherished by the majority of Malawians will act accordingly to safeguard our laws from alterations that undermine the will and values of the people. Decisions of such magnitude, touching on our fundamental principles must not rest solely on the opinion of a single judge but must reflect the conscience of our nation,” they said.
The faith leaders have since urged parliament to resist any legislative or policy changes expanding access to abortion, warning that doing so would undermine Malawi’s moral and cultural foundations.
“We call upon our Members of Parliament to once again, as did their predecessors in rejecting the proposed Termination of Pregnancy (TOP) Bill, stand united in defending life and resisting any attempt to manipulate our laws to justify the taking of innocent unborn lives. As faith leaders, we are fully aware of the hardships faced by women and girls who experience unplanned or difficult pregnancies. However, we firmly believe that ending the life of an unborn child is not the solution,” they said.
“Any attempt to expand the grounds for abortion beyond what is currently permitted would open the door to abortion on demand, which aligns with long-term objectives of global pro-abortion movements, a path we must not take. We hold without reservations that life begins at conception and is sacred, and no one has the moral or divine right to terminate life arbitrarily,” they emphasized.
Meanwhile, young people are expressing mixed views with some siding with advocates while others with religious bodies.
“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 hating 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.
But Masozi Lupafya disagrees.
“Allowing this could erode long-held social and religious value. Do not forget that terminating a pregnancy is the same as killing and the bible prohibits that. I also believe that some might even decide to abuse this,” Lupafya said.
Malawi’s abortion laws, inherited from British colonial rule, remain among the most restrictive in the region, criminalizing the procedure except when performed to save a woman’s life. Sections 149 to 151 of the Penal Code impose penalties of up to 14 years in prison for anyone who unlawfully performs or assists in an abortion.
On the contrary, other countries in the region have accommodating laws. Abortion laws in South Africa for example, are among the most liberal globally, allowing abortion on request during the first 12 weeks of pregnancy.
While Malawi continues to stick to restrictive abortion laws, thousands of women and girls continue to procure unsafe abortions. Illegal abortions place a heavy burden on women’s health, leading to significant complications and death, and on the healthcare system, government incurs high costs for treating these complications.
Complications from unsafe abortions are a leading cause of maternal mortality rates in the country. As testified by Doctor Chisale Mhango, a second witness for the claimant in the AC case, unsafe termination of pregnancy is responsible for 79 deaths per 100,000 live births in Malawi.
However, efforts to reform existing restrictive laws through the proposed Termination of Pregnancy Bill, drafted in 2015 have repeatedly failed in parliament amid strong religious opposition.
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