Legal Grounds : Reproductive and Sexual Rights in Sub-Saharan African Courts I, II, III

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There have already been two publications in this series, the first compiled by the Center for Reproductive Rights (CRR) in conjunction with the University of Toronto (Canada) Faculty of Law, International Reproductive and Sexual Health Law Program, the second compiled by CRR with the University of Toronto Program and also the LLM Programme on Reproductive and Sexual Rights of the University of the Free State, South Africa. A third edition is in the process of being published online, details below.

All three can be found here. All three contain reports and discussion of legal cases on a wide range of sexual and reproductive health and rights topics heard in courts across sub-Saharan Africa.

The first edition, compiled and edited primarily by Kibrom Isaac, was published in February 2005. The only cases specifically on abortion were attempts to challenge the constitutionality of the current abortion law in South Africa. In both cases, the constitutionality of the law was upheld:

> Christian Lawyers’ Association v. National Minister of Health and Others

(South Africa, High Court, Transvaal Provincial Division, [2004], Case No. 7728/2000) and

> Christian Lawyers’ Association of South Africa and Others v. Minister of Health and Others

(South Africa, High Court, Transvaal Provincial Division, Case No. 1629/97; [1998] (1) BCLR

1434 (T); [1999] (3) LRC 203)

The cases in the second edition, published in 2010, were identified and primarily drafted by Kibrom Isaac-Teklehaimanot and included an additional 48 cases up to 2008. Again, there were only three cases related to abortion, summarised in a chapter entitled “Abortion and Fetal Interests”. They include a wrongful life claim when a child was born with serious disabilities that were not identified during pregnancy, which was dismissed; a case in which the court was asked to define abortion as murder, which the court rejected. This case summary is accompanied by a long and valuable discussion of the implications of the ruling for dealing with any future attempts to define and treat abortion as murder. A third case is also listed in which several health professionals in Kenya were acquitted of murdering two fetuses found near their clinic, both because the deaths were not ruled as murders and because there was no evidence linking the accused to the deaths at all.

> Stewart v. Botha (340/2007) [2008] ZASCA 84 (3 June 2008) South Africa, Supreme Court of Appeal

> The State v. Mashumpa and Best (CC27/2007) [2007] ZAECHC 23 (11 May 2007) South Africa, High Court

> Republic of Kenya v. Nyamu and Others Case No. 81 of 2004 Kenya, High Court

The table of contents of the third edition contains links to information about some but not yet all of the cases. The chief editor is Godfrey Kangaude, Executive Director of the Nyale Institute for Sexual and Reproductive Health Governance in Malawi. The cases related to abortion include one from Kenya, in which a nurse who tried to treat a woman who came to him with complications of unsafe abortion was accused of murdering her and sentenced to death in 2009. An appeal against the sentence was lodged in 2014 and is still waiting to be heard. A detailed and valuable discussion of the significance of the Tali case can be found here. Details of a 2005 case from Niger about the distinction between abortion and infanticide have not yet been placed online. One case is from Rwanda, in which a girl who had been raped was permitted a legal abortion. And a case from Zimbabwe in which the State was held liable for hindering a woman’s access to emergency contraception but not for hindering her access to abortion.

> Republic v Jackson Namunya Tali [2014] eKLR, High Court Criminal Case No. 75 of 2009 (High Court of Kenya at Nairobi).  [Court convicts nurse of murder over abortion related death]  Decision online.

> Judgment No 216 of 13 December 2005 the Court of Appeal Niamey (distinction between abortion and infanticide)  Decision on file, in French. (Links not yet available.)

> Case no. RPA 0787/15/HC/KIG (High Court of Rwanda, Kigali) [2015] Unreported, Official English Translation. [legal abortion allowed for raped 13-year-old]. Official English translation of October 2015 decision, redacted.

> Mildred Mapingure v Minister of Home Affairs and 2 Others [2014], Judgment No. SC 22/14, Civil Appeal No. SC 406/12 (Supreme Court of Zimbabwe). [State held liable for hindering access to emergency contraception, but not abortion]  Decision online.

Suggestions for additional cases for the third edition are welcome.