Indeed.

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 The Prohibitionists thought they had banned the demon drink for ever in the USA but the Twenty-First Amendment repealed the Eighteenth.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.

“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.”

Regards,
Bright Theu

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.

Thanks for making these excellent points.

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.