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