Senegal: The law, trials and imprisonment for abortion

 

by Nandini Archer, Alice Finden, Hannah Pearson

Edited by Marge Berer

April 2018

 

Introduction 

The law on abortion in Senegal is both restrictive and unclear. Although the country’s criminal code completely prohibits pregnancy termination, the Code of Medical Ethics allows an abortion if three doctors agree that the procedure is necessary to save the pregnant woman’s life. Given these circumstances, almost no abortions are legal and unsafe abortion leads to a high maternal mortality ratio. A combination of an inherited colonial penal code, and the influence of religion and social stigma, mean that despite continuing attempts by advocates to change the law, cases of sometimes prolonged pre-trial detention and imprisonment for illegal abortion and for infanticide among women unable to obtain an abortion, are rife, especially among poor and rural women.

This report looks at Senegal’s abortion law and policy, the prevalence of unsafe abortions, attempts to reform the law, the process of criminalisation of women, the extent of infanticide, and women’s stories, based on a range of published sources and valuable input from Senegalese human rights and women’s rights advocates.

 

Abortion law and policy in Senegal

The Senegalese Penal Code was inherited from the former French colonial power and has been, for the most part, directly lifted from Article 317 of the 1810 Napoleonic Penal Code, which forbids abortion under all circumstances. In the Senegalese version, Article 305 of the Penal Code prohibits abortion, the beginning of which states:

“Whosoever, by food, beverages, medicines, manoeuvres, violence, or any other means, will have procured or attempted to provide abortion of a pregnant woman, that she consented to or not, shall be punished with an imprisonment of one year to five years and a fine of 20,000 to 100,000 francs.”

Article 305 goes on to say that the punishment for someone regularly practising abortion is five to ten years in prison, and a fine of 50,000 to 500,000 francs (~USD 86–860); for a woman who consents to or attempts to carry out an abortion on herself, the punishment is six months to two years in prison, and a fine of 20,000 to 100,000 francs (~USD 35–173); and for a medical professional who carries out abortions it is a suspension of their medical licence for at least five years or the complete annulment of their licence, plus six months to two years in prison, and a fine of 100,000 to 500,000 francs (~USD 173–860).

The Penal Code also condemns ‘practices that promote abortion’, which include public speeches, the distribution of any information describing abortion, including in private settings, and the advertisement of medical practices. Carrying out any of these is an offence under Law No. 80-49 of 24 December 1980, Article 305a of the Penal Code, even if an abortion does not take place.

According to Article 35 of the Senegalese Code of Medical Ethics, abortion is legal if the pregnant woman’s life is in danger. However, the administrative requirements call for the signatures of two other physicians, one of whom must be a court-approved expert. This is so stringent that the possibility of a legal abortion is very rare. Ultimately, almost no one succeeds.

Fatou Kiné Camara, President of the Association des Juristes Sénégalaises (Association of Women Jurists/AJS), who work to promote and extend the legal rights of Senegalese women, stresses: “Poor people in Senegal are lucky if they see one doctor in their lifetime, let alone three.” Senegalese feminist activist, Diakhoumba Gassama, explains that the fact that abortion on therapeutic grounds is permitted, means that anti-abortion commentators often assert that legal abortion is already in place in Senegal. In response, she argues:

“Here is my challenge to everyone… find me one woman in Senegal who has been able to abort a pregnancy legally.”

Since healthcare practitioners are subject to harsh sentences in addition to a five-year suspension of their professional license if they even provide information about abortion, very few are willing to carry out an abortion. Global Doctors for Choice recount an unpublished ethnographic study of Senegalese health practitioners, which found that one-third thought, in spite of the law, that abortion for rape and incest should always be permitted – yet very few were actually willing to provide these services. Moreover, even with post-abortion care, which is permitted as part of government policy, conscientious objection is frequently invoked when abortion is suspected of being induced rather than spontaneous.

Senegal’s national post-abortion care (PAC) programme has been described as “a leader in West Africa in the extension of post-abortion care”. The government is increasingly attempting to decentralise PAC services so that women can receive care at the local level.  

Manual vacuum aspiration (MVA) has been included in national norms and protocols for the treatment of incomplete abortion, while misoprostol has been on the List of Essential Medicines in Senegal for gastric ulcers, post-partum haemorrhage and PAC since 2013.

However, although the provision of PAC is legal in Senegal, women who arrive at health facilities seeking such care, who will have broken the law, are sometimes reported to law enforcement authorities by unsympathetic health professionals.

Furthermore, PAC is generally available only at secondary and tertiary level facilities, and only from high level providers, such as physicians and senior gynaecologists, but even then, necessary equipment and supplies are frequently unavailable. Moreover, a 2017 Knowledge, Attitudes and Practices survey of 110 pharmacists, to gather information about misoprostol availability, found that although 72% of the pharmacists had heard of misoprostol and 48% who were not selling it expressed a willingness to do so, in fact only 34% reported actually selling misoprostol.

 

The prevalence of unsafe abortions

An estimated 8-13% of maternal deaths in Senegal were caused by complications of unsafe abortion, according to a report by the Fédération Internationale des Ligues des Droits de l’Homme (FIDH). According to a study by Gilda Sedgh et al, published in 2015, an estimated 51,500 abortions took place in Senegal in 2012, virtually all of which were clandestine and unsafe. The methods most commonly used to terminate a pregnancy were drinking caustic agents, such as bleach or detergent; drinking herbal solutions; and surgical procedures such as MVA and D&C. Overall, an estimated 38% were provided by untrained providers, 21% were induced by women themselves, 20% were provided by a nurse/midwife, 17% by doctors and 4% by a pharmacy. In addition, the study found that 55% of the women who had had abortions experienced complications (range 44% in Dakar to 60% elsewhere). Almost half (42%) did not receive medical treatment.

 

The prevalence of unwanted pregnancies as a result of sexual abuse

A significant issue in Senegal was uncovered by a delegation of experts who visited Senegal in 2014 on behalf of FIDH to study whether Senegal was complying with the rights called for by CEDAW and in the Maputo Protocol on abortion. They found a high prevalence of pregnancy among young girls which were the result of sexual abuse, which was often followed by the refusal of an abortion. In their report, they showed that these pregnancies have terrible physical and psychological consequences for young girls. The physical consequences alone are because the uterus, pelvic bones and spine of young girls are not developed enough to carry a pregnancy without damage, while the cervix and birth canal are too narrow to allow a vaginal birth. A caesarean section in a child, carried out when abortion is not permitted, also carries high risks.

Such cases are so common, Diakhoumba Gassama says, that: “Here in Senegal, you cannot open a newspaper without reading: ‘Young girl violated by her uncle… students sexually abused”.

Between 2013 and 2014, the Family Child Guidance Centre alone recorded 420 cases of sexual abuse of girls aged 7 to 14, 30% of whom had become pregnant and were denied an abortion. Of these pregnant girls, some 10-15% had to undergo a caesarean section because of their young age. Moreover, in the first 11 months of 2016, some 250 cases of rape of girls aged 3 to 18 were recorded, of which 52 cases resulted in a pregnancy, among which were 25 cases of pregnancy following incest.

 

Attempts to change the law

In 2005, AJS and a number of high-level Ministry of Health officials attempted to persuade the National Assembly to permit abortion in cases of rape and incest in the Reproductive Health Law. However, threats from members of the National Assembly to reject the bill entirely if abortion was included led the advocates to back down in order to protect access to contraception and PAC, which the bill also covered.

In 2013, the Ministry of Health’s Division of Reproductive Health set up an Advocacy Committee for Access to Safe Abortion in Senegal. This multidisciplinary task force was comprised of medical professional associations, lawyers, sociologists, doctors, midwives, journalists, academics and religious persons. According to Soukeyna Diallo of AJS, the aim is to ensure there are legal, medical, and social conditions in place to ensure Senegalese women’s survival from abortion, to make infanticide unnecessary, to ease practitioners’ anxiety about providing PAC, and to restrict the criminalisation of abortion.

In 2014, the Task Force drafted a bill on safe abortion, using the language of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which Senegal had ratified in 2005. They informally presented the bill to the Committee for the Reform of the Criminal Code and to officials of the Ministry of Health, hoping they would present it to the Council of Ministers for adoption. This did not take place however. Nonetheless, as a team of some 20 organisations and individuals, the Task Force was able to do a great deal of advocacy work and put the subject of abortion, which had been taboo, into the public space. In the first half of 2018, the Task Force plan to formally present the bill to the Ministry of Justice, in order to press for an official response.

AJS has a long history of campaigning for legalisation of abortion on grounds of rape and incest, and if the continuation of the pregnancy is a risk to the physical or mental health of the girl or woman. AJS has trained over 1,000 parajuristes (legal lay people) since 2008, to help with and improve the handling of abortion-related cases. Human rights lawyer Amadou Aly Kane noted that these parajuristes are playing a vital part in improving access to justice, while AJS President Camara reported that the parajuristes uncover cases of young, pregnant girls and act as their “eyes and ears on the ground”.

Feminist social movements in Senegal and Africa remain strong and tireless in their efforts, urging the government to fulfil its regional and international obligations. This led Senegal’s President Macky Sall to state in 2015 that he may eventually support legalisation of abortion in cases of rape and incest.

 

Miscarriages or abortions?

Despite the legal barriers to abortion, the number of women who are actually prosecuted for abortion is low, and no prosecutions of abortion providers have been found. According to researcher Siri Suh, between 1987 and 2010 in one region of Senegal, the state only prosecuted 42 cases of illegal abortion, that is, less than two cases per year. (We were unable to find national figures.)

Why so few cases? Again, according to Siri Suh, during both 2009 and 2010, hospital records show that over 90% of abortions were classified as ‘spontaneous’ and 3-8% of cases were not classified at all. This means that less than 1% were classified as induced. In another study, Suh reports that between 2000-2002 a review of abortion records in six district hospitals and 12 health clinics in two regions found that 95% of abortions were recorded as spontaneous, yet up to 35% of patients admitted that the pregnancy was unwanted”.

This cover-up of induced abortions in medical records is also achieved through the use of ambiguous language, such as ‘induced miscarriage’ or ‘missed abortion’. As a physician and a nurse, respectively, interviewed by Suh told her:

“We know that most of them lie, but if she [the woman] says it’s spontaneous, you can’t write induced, you have to write spontaneous… We record what the patient tells us, we write the words of the patient, we are not the police, we don’t do investigations.”

“We record them all as spontaneous abortions, knowing that induced abortion is illegal, therefore there can’t be any induced abortions.”

 

Infanticide

Infanticide in Senegal is widespread. Newly born infants, reportedly most frequently the outcome of rape or incest, are regularly found dead in public places, including in garbage trucks and sewers. Their existence directly reflects the failure of women to obtain an abortion at all, even an illegal one. Thus, the criminalisation of abortion leads directly to the crime of infanticide and is another reason why women may end up in prison. Similar to girls and women who seek clandestine, unsafe abortions, girls and women who carry out infanticide often come from poor socio-economic backgrounds.

According to the latest survey on the economic and social situation of Senegal, by the National Agency of Statistics and Demography, in 2012 cases of infanticide accounted for 25% of cases judged in the assizes. Also in 2012, the Directorate of Prison Administration identified 29 women jailed for infanticide. In Dakar alone, it was found in criminal records that 14 women had been sentenced or were in pre-trial detention for infanticide, even though proving the women had committed infanticide is often complicated.

In a prison in Thiès, it was reported that in 2017 more than eight women had been found guilty or were in detention for infanticide. Almost all of the ones who agreed to speak to the journalist who interviewed them denied killing their baby. One, a mother of four, said she knew how to cause an abortion and would have done so early in pregnancy if that was what she had wanted.

Taken together, the two offences of abortion and infanticide account for 38% of the female prison population in Senegal. However, the number of actual prosecutions has remained low, compared to the number of women in pre-trial detention for suspected infanticide or illegal abortion, which is remarkably high. Infanticide in fact accounts for the second largest percentage of women in detention, at 16%.

Khady Ba, a Senegalese lawyer in Dakar, reports: “the most shocking thing for me is to see women in jail with their babies.” Pregnant women are isolated for two months before and after giving birth, and children can remain with their mothers up to the age of three. Since socio-cultural norms in Senegal stigmatise prison, along with abortion or infanticide, women often lose their social connections with their family, friends and communities in the outside world.

Prosecutions involving women and girls tend to take place behind the scenes and are viewed as a private matter. AJS staff and other feminist activists in Senegal say they are often in the dark about the details of legal cases.

The media do report particularly egregious examples every so often, most notably when an extremely young girl is a victim of sexual abuse but denied an abortion, or when a woman has committed infanticide in a particularly disturbing manner after having been denied an abortion. Often, campaigners use such high-profile cases to flag the need for legal abortion in the country. For instance, in 2011, when a 14-year-old victim of rape was arrested for abortion, Fatou Kiné Camara, President of AJS, called for the immediate application of the Maputo Protocol, Article 14(2c). Around the same time, a 9-year-old who was raped was also forced to go through with the pregnancy. AJS managed to pay for her to have a caesarean section rather than deliver at term, but she died a few months after the baby was born due to the physical trauma of childbirth.

In 2012, Mariama (not her real name), aged 40 years, gave birth to her seventh child. The infant died at birth and Mariama was convicted of infanticide. She awaited her trial for 3-years in prison, and is now serving a seven-year sentence in Thiès prison, mentioned earlier. She said one of the hardest things was leaving her family behind. In the same prison was a girl aged 16 years and her grandmother, aged 83 years, who was convicted of assisting her granddaughter with infanticide, and a woman who was raped and impregnated by her employer.

Another case was brought into the international spotlight in 2014 when a 10-year-old girl who had been raped by a neighbour was found to be carrying twins but was denied an abortion even so.

The most recent case to come to light, in March 2018, was of a 14-year-old girl who was put on trial for self-inducing abortion with abortion pills on 14 February 2018. In a very short space of time, she was convicted of the crime of abortion and given two years’ imprisonment. Activists and feminists in the country are keeping an eye on the case and hoping to be able to visit the girl in prison. Diakhoumba Gassama explained that the imprisonment of a minor in Senegal is extremely rare, and expressed particular concern that the court process took just two months, indicating that a powerful individual may have been the perpetrator.

The details of these case stories denote the immense failure on the part of the Senegalese justice system to uphold human rights, especially of young girls and women whose pregnancies were not due to any action of their own. And this is merely a snapshot…

 

Acknowledgements

Many thanks to Diakhoumba Ghassama for contributing information for this paper and to Soukeyna Diallo for help and guidance in the research process. We laud the tireless campaigning and research carried out by AJS and FIDH, as well as the journalists who have sought to spotlight the continuing injustice.

 

FULL REPORT