MALAWI – Civil society celebrates the anniversary of a landmark high court ruling on the right to access legal abortion in Malawi    

PRESS STATEMENT 

FOR IMMEDIATE RELEASE 

21 June 2024

Dedza, Malawi – Today, civil society organizations proudly celebrate the anniversary of the landmark High Court ruling that upheld and clarified critical exceptions to Malawi’s abortion laws, providing essential protections for women’s and girls’ health and lives. The ruling was issued on 15 June 2021, and we are commemorating this significant milestone today, 21 June 2024, in the presence of supportive organizations and advocates for women’s reproductive rights.

In the case [State (oao HM (guardian) on behalf of CM (minor)) v Hospital Director of Queen Elizabeth Central Hospital & the Minister of Health (Judicial Review Clause 3 of 2021)], several civil society organizations, including Women and Law in Southern Africa (WLSA-Malawi) and supported by the Centre for Reproductive Rights (Kenya), facilitated access to the High Court for a young girl who was denied a legal abortion. The girl, aged below 18, had been sexually violated, resulting in a pregnancy, and was abandoned. Her request for a termination of the pregnancy at the One Stop Centre at Queen Elizabeth Central Hospital, in Blantyre was denied. WLSA Malawi and other organizations facilitated a judicial review application to challenge the health provider’s refusal to provide a legal abortion.

While the High Court did not decide the matter due to a legal technicality, its ruling clarified that while Sections 149 to 151 of the Penal Code prohibit induced abortion, Section 243 permits abortion when a woman’s or girl’s life or health is at risk. The Court recognized the critical importance of safeguarding both mental and physical health as integral to preserving life.

We are particularly pleased that this judicial affirmation of the conditions under which abortion is legal in Malawi has been acknowledged by the Government of Malawi before the United Nations Committee on Economic, Social, and Cultural Rights. The government stated:

“With regard to decriminalizing abortion, while sections 149, 150, and 151 of the Penal Code criminalize attempts to procure abortion or the supply of drugs for abortion, section 243 allows for abortion in cases where a woman’s or girl’s life or health is at risk. A 2021 High Court ruling upheld this exception, requiring women seeking an abortion to consult a doctor and explain the threat to their life or health. The Court emphasized that safeguarding mental and physical health is part of preserving life.”

We commend both the Judiciary and the Executive branches of the Government for making this important clarification public. Women and girls who believe their pregnancy poses a threat to their life or health have the legal right to consult a health care provider. Health care providers in turn have a critical duty to safeguard the mental and physical health of those seeking legal abortion.

The key points from the High Court ruling are:

  1. Affirmation of Health Protections: The ruling affirmed that mental and physical health are crucial components of preserving life in cases of risky pregnancies.
  2. Legal Clarity: Women seeking an abortion due to risks to their life or health have the right to consult a health provider, offering a clear pathway for accessing legal abortion.
  3. Advancement in Reproductive Rights: The ruling marks a significant step forward in protecting reproductive rights in Malawi, ensuring that the health and lives of women and girls are prioritized.

We extend our heartfelt gratitude to the legal team, donors, supporters, and all those who have tirelessly advocated for women’s rights. We also acknowledge the progressive stance of the Malawi Government in recognizing and supporting this important ruling.

As we celebrate this milestone, we reaffirm our commitment to continue advocating for comprehensive reproductive health rights and ensuring that all women and girls in Malawi can access the healthcare they need without fear.

Civil society organizations co-signing this statement:

  1. Nyale Institute
  2. Centre for Human Rights and Rehabilitation
  3. Center for Reproductive Rights (Kenya)
  4. Afya na Haki (Uganda)
  5. Malawi Sexual Reproductive Health and Rights Alliance
  6. Religious Network for Choice
  7. Young Voices Movement
  8. Y+ Malawi
  9. Theatre for A Change
  10. Centre for Conflict Management and Women Development Affairs
  11. Ipas Africa Southern Region
  12. Alliance for Youth SRHR Organizations (AYSO)
  13. For Equality
  14. Malawi Human Rights Resource Centre (MHRRC)
  15. Foundation for Civic Education and Social Empowerment (FOCESE)
  16. Kwathu ndi Kwanu (KNK)
  17. Centre for Social Journalism (CSJ)
  18. Family Planning Association of Malawi (FPAM)

The press conference was held on 21 June 2024 at the Mountain View Lodge, Dedza, Malawi. The agenda was to celebrate the anniversary of the 2021 High Court ruling and its impact on advocacy for safe abortion.

Here is a link to the High Court ruling in 2021: https://malawilii.org/akn/mw/judgment/mwhc/2021/43/eng@2021-06-15

and a link to the Government’s acknowledgment of the High Court ruling in paragraph 98 (see https://tbinternet.ohchr.org/layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2FC.12%2FMWI%2FRQ%2F1&Lang=en

[With heartfelt congratulations to everyone who has worked so hard for this over so many years, from an editor who has published so many of your reports over so many of those years!! Marge] 

SOURCE: Dr Godfrey Dalitso Kangaude, Executive Director, Nyale Institute. WhatsApp: +265 888 953 373. E-mail: info@nyaleinstitute.org.mw