Rendering Abortion Unconstitutional? Article 28 of Zambia’s New Draft Constitution

by | May 10, 2013

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About Guest contributor

Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast

By Yaliwe Clarke

Given international gains in legislation that protects women’s right to abortion, it is concerning that Zambia’s current draft constitution has put this matter back into national political debate. Due to the inclusion of Article 28 (1) in the new draft constitution that states that “…life

begins at conception,” a new and seemingly unexpected controversy about women’s reproductive right to abortion has hit national television and radio stations. Members of the Non-Governmental Coordinating Council (NGOCC), an umbrella body of women’s organisations, have discussed this matter in their own national consultations with women about the content of the draft constitution.

Recurring themes in previous Zambian constitution review processes included: devolution of the powers of the president; electoral procedures; affirmative action for women; and citizenship.  Despite the fact that national statistics reveal that up to 50% of acute gynaecological admissions in Zambia result from abortion complications, women’s reproductive right to safe abortion has never before been a matter of constitutional concern. Contestations about abortion that arose in recent district, provincial and national constitutional hearings speak to a troubling prevalence of patriarchal attitudes towards women’s legal right to safe reproductive health services in general, and abortion in particular.

At the heart of legal contention on this matter is the fact that Zambia’s existing laws legalise abortion. The Termination of Pregnancy (TOP) Act No. 26 of 1972 (Chapter 304 of the Laws of Zambia) and the Penal Code (Chapter 87 of the Laws of Zambia) make it possible for Zambian women to abort. The TOP Act entitles a woman to seek a termination of pregnancy on health and socio-economic grounds, when her own life and health, or the health of other members of her family, may be put at risk by the pregnancy, or when the foetus may be expected to be damaged or diseased. The Penal Code allows termination of pregnancy in the event a female child is impregnated as a result of raped or defilement. But by stating that “…life begins at conception” Article 28 of the draft constitution pitches these Acts against the ‘unborn child’s’ right to life as stipulated in the current and draft constitution’s Bill of Rights. If passed, the draft constitution could render the TOP Act and Penal Code unconstitutional. This would have huge implications for Zambian women and girls who would not be able to legally seek abortion.

The question of  the morality of abortion from the perspective of ‘Christian values’ enshrined in Article 2 of the draft constitution has made it hard for Zambians to support the idea that women have the right to decide whether to keep an unwanted pregnancy. Many Zambians have found it difficult to argue for the removal of Article 28 because they do not want to be seen to publicly rebuff Christian interpretations of the sanctity of life as stated in the Bible. On the other hand, women’s rights organisations are adamant that should the draft constitution be passed as it is, Zambian women’s and girls’ chances of suffering from unsafe abortions would increase and severely compromise their right to safe reproductive health services.

Yaliwe Clarke is a lecturer and researcher at the University of Cape Town. Her research interests are feminism, peace and security in African contexts.

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  1. Ron

    Is it best conceptualised as a “right to abortion” (as in para 1 here) or as a “right to privacy”/”freedom from government interference in health and reproductive affairs”?

    Which formulation would be most persuasive to those voters/officials who needs convincing?

    • yaliwe

      Hey there, I think ‘right to privacy’ or ‘freedom from government interference’ would be more persuasive.

  2. BEN DOO

    The abortion laws you have cited do not negate the fact that life begins at conception. In fact, clearly implicit in those laws is a recognition of the fact that life begins at birth, but it can be terminated on the grounds stipulated therein. How is merely stating that “life begins at conception” inconsistent with the laws you have cited, let alone SEVERELY compromise the right to safe reproductive health services?

    • Laura.Hilly

      Hi Ben, here is a link to the full text of the draft constitution:

      As you can see, Art 28(1) reads:
      Right to Life
      (1) A person has, subject to clause (2) and (3), a right to life, that begins at conception.
      (2) A person shall not be deprived of that life intentionally, except to the extent authorised by this Constitution or any other law.

      This might shed some light on Yaliwe’s argument.

  3. yaliwe

    Hello Ben, my point is that article 28 (1)of the draft constitution that states that ‘a person has……..a right to life, which begins at conception” would negate current Zambian laws that imply that life in fact begins at birth (as you put it). Zambia’s Termination of Pregnancy Act does not equate “pregnancy” to a “life” with full rights, that is why abortion is currently legal. Once a ‘pregnancy’ is considered a “life” from the point of conception, then termination of pregnancy would be interpreted as termination of ‘life’ and thus contravene a constitutionally enshrined ‘right to life’ stipulated in the bill of rights. Simply put, if the idea that life begins at conception remains in the constitution then termination of Pregnancy/abortion can be construed an unlawful termination of life – a deliberate termination (killing) of a person (the unborn ‘life’) by another person (the woman that carried this ‘life’ in her womb). Termination of pregnancy/abortion would thus be rendered constitutionally illegal on the grounds that a life has been intentionally terminated. Even though clause 2 of Article 28 qualifies this by stating that “A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or any other law”, Zambia’s Termination of Pregnancy Act would in effect be a law that would bow to the Constitution and hence article 28 would negate the effect of the TOP Act. This would mean that the Termination of Pregnancy Act would be rendered unconstitutional. Health professionals would no longer be allowed to provide legal abortion services. In fact, health professionals would risk being arrested and having their medical professional license revoked because they would be partaking in an illegal activity. Women would no longer be able to receive legal medical assistance for abortion. Women that might be admitted to hospital for gynecological complications arising from an unsuccessful abortion would have to risk being arrested for ‘depriving life intentionally’ as stated in Article 28 (1).

  4. Andrew

    What if the voters, male and female, are not persuaded, Ron? Should they have their way?

    • Ron

      Depends entirely on one’s view of the best way to protect minority/disadvantaged interests against majoritarian interests, and one’s view of the merits of entrenched bills of rights (&c) vs the merits of less restrained popular sovereignty.

      • Andrew

        In a democratic society entrenchment can be overcome by supermajority or constitutional amendment. The Prohibitionists thought they had banned the demon drink for ever in the USA but the Twenty-First Amendment repealed the Eighteenth. There is a tension between human rights and democratic choice and it won’t go away.

  5. Sally Chiwama

    Hey Yaya,

    Great piece right there. Just to agree with you further. There is not scientific evidence as to when exactly conception takes place. No one really knows, as in is it one minute after a man ejaculates in a woman, is it, 10, 30 60 minutes, or it two hours etc after?
    Also if Article 28 in left in the constitution, doctors jobs maybe put in jeopardy as, in what happens to women who have eptopic (sp) pregnancies? Do doctors live the products of that pregnancy in the womb and out a womans health in danger?…there are many more examples. So my point is that clause does not belong in the constitution period.

  6. yaliwe

    Hey Sally,

    Thanks for making these excellent points.

  7. Elaine Salo

    Dear Yaliwe the issue of greatest concern is that regardless of TOPS being enshrined in the constitution, the informal, though immense social pressure from prevaling norms concerning ordinary men’s and women’s beliefs about when conception begins, will provide the feistiest obstacle to access. We have seen this occur in South Africa where TOPS is legal and health services are expected to provide assistance to women seeking TOPS. However nurses have cited their right to conscientious objection as a means to prevent them from assisting in TOPS procedures.

  8. Greer Feick

    I received this comment for Yaliwe in an email (there appears to have been a technical error that prevented the author from posting a comment directly on the blog!). I am posting the comment here so responses can be generated in connection with the post:

    “I am afraid, there is a considerable degree to which I do not agree with most if not all the substantial claims and conclusions you have made. Firstly, it is incorrect to conclude that abortion is legal in Zambia based on the law you cite, as starting premise when considering the implications of draft s.28. Rather what is clear is that abortion is illegal, except in a few prescribed circumstances. In other words abortion is not openly legal (which would mean no reasons have to be furnished, so long as one chooses it will be terminated), but is only allowed on the exceptional grounds. (I make this observation based on what you have summarised as the purport of the abortion laws in Zambia). Secondly, you definitely confound issues when you overly dwell on the “life begins at conception” view and make the conclusion you make that “Once a ‘pregnancy’ is considered a “life” from the point of conception, then termination of pregnancy would be interpreted as termination of ‘life’ and thus contravene a constitutionally enshrined ‘right to life’ stipulated in the bill of rights.” This is for the simple reason that the TOP law does not negate the view that life begins at conception (and I make not argument on the propriety of this view). All that the TOP law does is to provide for circumstances under which a pregnancy can be terminated. This cannot be equated to negating that life begins at conception. Perhaps even quite to the contrary, the TOP law arguably acknowledges that life begins at conception by only allowing its termination in exceptional circumstances, other than making abortion absolutely pro-choice (which would entail no stipulation of circumstances under which it can be carried out). Thus the premise “pregnancy is considered a life” is not only unnecessary, but also erroneous, and not surprisingly, the conclusion that “the termination of pregnancy would be interpreted as termination of life and thus contravene constitutionally enshrined right to life…” is also erroneous. Perhaps had you concerned yourself with the word “person” in draft section 28, you would have advanced a possible argument that s.28 purports to define a person to include the “unborn being” and thus entitle it to the right to life, termination of which amounts to deprivation. But even in this case (and most definitely, the one you advance), the proposition is erroneous. It is erroneous because a deprivation of life “authorized by this Constitution or ANY OTHER LAW”, would not be unconstitutional. Any other written law definitely includes the TOP Act! In short it doesn’t matter whether we define what’s being terminated as a life or not. Rather what matters is whether we are terminating a life or pregnancy in accordance with the law. If we intentionally terminate a pregnancy (- call it a life) as allowed by a known law, it won’t be an unconstitutional termination of life.. Accordingly, the fear that the TOP Act would be rendered unconstitutional is unfounded on a proper consideration of the implications of entitling a person to the right to life from conception as draft s.28 does. Draft s.28 takes cognizance of others laws prescribing for termination of pregnancies (and so life) such as TOP Act, just like it provides for intentional deprivation of life sanctioned by a death penalty. Thus abortion on the prescribed circumstances will remain constitutional, and so health professionals will continue to terminate pregnancies that fall within those prescribed circumstances without fear of arrests because such intentional deprivation of life is contemplated and espoused by draft s.28 in its current form.

    On the related concern by Sally Chiwama: that it is not scientifically known when conception takes place, is inconsequential to the issue, because s.28 concerns itself with conception, from the point of conception onwards, and as long as we can scientifically prove that conception has taken place, at what point in time it took place is of no practical consequence. Further in the case of pregnancies of the type you have mentioned (eptopic (sic) – ectonic pregnancy), definitely if that threatens the health of the mother, then that constitutes a ground for termination as already provided for by the law (TOP Act). I suppose you made this point on the erroneous belief that draft s.28 would render the TOP Act unconstitutional, which is not quite the case.”

    Bright Theu

  9. Lunda Bwalya

    Here in Zambia, what does the law say to a person who entices a woman to abort by giving them money to do so because they done want that pregnancy, what does it say? And what about to the girl now is she also a culprit?

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