Constitution in comparative perspective

The Constitution is the country's supreme law.Footnote ⁴¹ It addresses abortion primarily through article 22 (the right to life clause), which contains a constitutional prohibition against terminating the life of an “unborn child”. Article 22(2) provides that “[n]o person has the right to terminate the life of an unborn child except as may be authorised by law”. This article should be understood as serving a dual purpose: to protect foetal life while concomitantly recognizing the constitutionality of the law that permits abortion. On the one hand, article 22(2) treats foetal life as a constitutionally protected interest under a right to life provision. On the other hand, it gives constitutional legitimacy to legislative instruments and common law that permit abortion. It is submitted that the constitutionalization of abortion by article 22(2) need not be understood as a dramatic intervention to curtail abortion. Instead, it is more suggestive of the constitutionalization of a compromise. This is an approach which is substantively shared with many other jurisdictions where a constitutional duty to protect unborn life coexists with recognition of women as citizens with the decisional autonomy to terminate a pregnancy.Footnote ⁴²

Article 22(2) reflects a political compromise forged during the making of the post-independence constitution. The deliberations of the Ugandan Constituent Assembly, which proposed and debated draft clauses of the Constitution prior to its adoption, show that, although abortion was considered by the drafters of the Constitution, they could not reach a consensus on the subject.Footnote ⁴³ Predictably, opinion was divided between those favouring a highly restrictive approach and those favouring a more liberal approach permitting abortion on the grounds of: unlawful sexual intercourse such as rape and incest; a threat to the health or life of the pregnant woman; and foetal health.Footnote ⁴⁴ As a way forward, the Constituent Assembly adopted a clause that, on the one hand, protects foetal life but, on the other, implicitly mandates abortion if permitted by law. Ultimately, the assembly's view was that a constitution is not the place for addressing abortion or articulating exceptions to the criminalization of abortion and that it was more appropriate to leave the formulation of substantive law to Parliament.Footnote ⁴⁵

Against this backdrop, article 22(2) should be understood as intended to restrict rather than proscribe abortion. In substance, this makes Uganda unexceptional save for the fact of inscribing foetal life as a protected constitutional interest in the provisions of a constitution.Footnote ⁴⁶ No jurisdiction has ever been able to reach consensus on abortion, given the underpinning moral controversy.Footnote ⁴⁷ Despite its location in a provision that guarantees the right to life, article 22(2) cannot be construed as importing the notion of an absolute right to foetal life. Parliament and, indeed, the courts are implicitly given significant leeway to develop abortion law in ways that take into account the fundamental rights of pregnant women. Furthermore, in the age of constitutionalism and human rights, reading into the Constitution abortion rights and corresponding state duties is a permissible canon of constitutional interpretation. Reading in such rights and duties can be understood not so much as reforming the substantive law of abortion but, instead, as affirming or clarifying what is already contained in a constitution, albeit not explicitly articulated.

Because the Constitution is supreme, to pass constitutional muster, any “authorizing” law under article 22(2) must necessarily conform to constitutional values and rights. Any authorizing law must not restrict or seek to restrict constitutional rights already expressly or implicitly guaranteed to women. Equally, it must not exceed or seek to exceed the constitutional mandate. Because article 22(2) does not enunciate the substantive constitutional parameters of the right to abortion, other provisions of the Constitution must necessarily be taken into account in order to clarify them. It is trite that a constitution's provisions must be read holistically in order to capture not just the letter but also the purpose or spirit of a constitution as supreme law.

Article 22(2) of the Constitution aside, Uganda has no history of constitutionalizing abortion. When interrogating the constitutionality of abortion, it therefore serves well to consider how other jurisdictions have developed and applied constitutional principles for regulating abortion, even in the absence of an express constitutional provision on the subject. Comparative jurisprudence from the United States, Germany, Colombia and South Africa shows that, notwithstanding the persistence of the intractability of the moral and political conflict engendered by abortion, the last four decades or so have seen women's decisional autonomy, however contested, steadily accepted by domestic courts.Footnote ⁴⁸ While cognisant of the tension between recognizing women's reproductive autonomy and protecting foetal life, courts in liberal democracies have found a way to develop constitutional frameworks that integrate opposing normative perspectives to eschew overburdening women or requiring them to serve as mere reproductive instruments.Footnote ⁴⁹

In Roe v Wade (Roe),Footnote ⁵⁰ the US Supreme Court held that the right to privacy guaranteed by the 14th amendment of the US Constitution encompassed a woman's right to decide whether to terminate her pregnancy. The decision highlighted that, as part of the constitutional right to privacy, the state has a duty to respect the decision of a pregnant woman and her doctor to terminate a pregnancy at any time before the foetus is viable. At the same time as curtailing the woman's reproductive autonomy in order to protect her own health and the prenatal life as the pregnancy grows using a “trimester” framework, the court recognized the physical and emotional harm that would be visited on women if they are denied choice.

In contrast to Roe's trimesterized approach, in 1975 the German Constitutional Court held that, under the provisions of the German Basic Law which guarantees the rights to dignity and life, the state has a duty to protect foetal life.Footnote ⁵¹ Furthermore, protection of foetal life takes precedence over the pregnant woman's right to self-determination for the entirety of the pregnancy. Significantly however, the court still permitted abortion. It said that, though still a crime, abortion was not punishable in exceptional circumstances such as in the case of severe foetal anomalies, a threat to the pregnant woman's life or health, rape or incest or, even more significantly, a “general social situation” of need.Footnote ⁵² The court explained the exceptions on the ground that, although a pregnant woman is expected to protect the foetus and carry it to term, she is not required to carry “extraordinary” burdens.Footnote ⁵³ In 1993, the court went further and framed the duty to protect foetal life in a manner that conceded the constitutional legitimacy of recognizing women's greater decisional autonomy. It recognized that compelling women to carry a pregnancy to term through the sanction of criminal law was not the best approach to protecting foetal life and that non-criminal measures, such as economic support for women who wish to carry a pregnancy to term, were preferable.Footnote ⁵⁴

In Case C-355/06, the Colombian Constitutional Court ruled that it was unconstitutional to prohibit abortion in all circumstances under the Colombian Penal Code.Footnote ⁵⁵ The court declared that abortion should be permitted when pregnancy poses a risk to the woman's life or physical or mental health, when there are serious foetal malformations that render the foetus unviable, or when pregnancy is the result of rape, incest, unwanted artificial insemination or unwanted implantation of a fertilized ovule. While conceding that the state has a legitimate interest in protecting foetal life, it said that the interest did not flow from a constitutional right to life but from a “constitutional value of life”, which does not derive the same level of protection as that granted to a pregnant woman.Footnote ⁵⁶ The court emphasized that the interest should not be understood as subordinating the pregnant woman to the foetus to render her a mere “reproductive instrument”.Footnote ⁵⁷ It said that, when the legislature chooses to protect foetal life through the criminalization of abortion, it must do so having taken into account the fundamental rights guaranteed to women by the domestic constitution and international human rights instruments, including their rights to life, health and equality.Footnote ⁵⁸

Thus far, South Africa is the only African jurisdiction where the constitutionality of abortion has been judicially tested, albeit at the level of a first instance rather than appellate court. In Christian Lawyers’ Association of South Africa v Minister of Health, it was argued before the High Court that the Choice on Termination of Pregnancy Act 92 of 1996, which had reformed domestic abortion law, was unconstitutional.Footnote ⁵⁹ Among other grounds, this act permits abortion at the pregnant woman's request.Footnote ⁶⁰ It was argued that the act violated section 11 of the South African Constitution, which guarantees a right to life to “everyone”, as life begins at conception. The court rejected this argument. It held that the constitution only conferred fundamental rights on persons, not on prenatal life. Furthermore, it held that, even if a foetus could be recognized as having a constitutional right to life, any such right would not be regarded as absolute. Any foetal rights would need to be balanced against the constitutional rights guaranteed to the pregnant woman, including her rights to: equality; life, human dignity, bodily and psychological integrity including the right to make decisions concerning reproduction; and access to health services, including reproductive health services.Footnote ⁶¹

Comparative jurisprudence can, therefore, be appropriated to yield persuasive precedents for constructing an enabling constitutional framework that serves as a template for designing legislation to recognize a woman's right to access to safe abortion in Uganda. While there are significant jurisprudential differences among the decisions of the courts of the United States, Germany, Colombia and South Africa, the outcomes are largely similar. Any rights or interests accorded to the foetus or the state are relative and are weighed against the constitutional rights of the pregnant woman. Regardless of the constitutional status accorded to the life of a foetus, the jurisprudence tells us that foetal life cannot be protected in isolation from the fundamental rights of the pregnant woman. Furthermore, the cases tell us that, whatever the constitutional framing, where protecting foetal life will disproportionately impact on the rights of the pregnant woman, abortion will be permitted.

Another comparative lesson to draw for Uganda, especially from Colombian and South African jurisprudence, is that a constitutional right to abortion is better understood as flowing from disparate constitutional provisions. Therefore, it is not just article 22(2) which is relevant when extrapolating a fundamental rights approach to abortion, but also other constitutional provisions. Provisions of the Ugandan Constitution which can be used to assert a pregnant woman's right to abortion as well as shape its normative content include the rights to: equality and non-discrimination;Footnote ⁶² life;Footnote ⁶³ personal liberty;Footnote ⁶⁴ human dignity and protection from inhuman treatment;Footnote ⁶⁵ privacy;Footnote ⁶⁶ protection of freedom of conscience;Footnote ⁶⁷ the full and equal dignity of women, including freedom from laws, cultures and traditions that undermine the status of women;Footnote ⁶⁸ and administrative justice.Footnote ⁶⁹ In this sense, in its constitutionally unenumerated form, a substantive right to abortion is better understood as a composite rather than discrete right. It draws sustenance from disparate provisions of the Bill of Rights that, while not addressing abortion directly, are amenable to being interpreted as having a constitutional bearing on abortion. The approach of the Colombian Constitutional Court in particular underscores that drawing on other pertinent constitutional rights when interpreting and applying abortion rights also serves to build a synergic bridgehead with international human rights.Footnote ⁷⁰ Article 45 of the Ugandan Constitution, which provides that fundamental rights not specifically articulated in the Constitution shall not be regarded as excluded, is an enabling provision in this way.

As part of building synergy between constitutional rights and fundamental rights, it serves well to highlight that the association between unsafe abortion and high levels of maternal mortality and morbidity highlighted above justifies linking a failure by the state to discharge the duty to provide health services, including reproductive services, with violations of the more justiciable rights under the Ugandan Constitution such as the right to life. In their general comments, general recommendations and concluding observations, UN treaty-monitoring bodies have linked unsafe mortality due to highly restrictive abortions to violations of the rights to health and life.Footnote ⁷¹ Closer to home, the African Commission's General Comment No 2 underlines that unsafe abortion is a significant cause of “preventable” maternal mortality in the African region and that states have an obligation to take positive measures to reduce unsafe abortion, including providing accessible requisite health services in order to meet women's health needs.Footnote ⁷²

Constitutional provisions that are amenable to supporting a right to abortion and informing its normative content under the Constitution need not be confined to constitutional rights that are clearly intended to be justiciable. Constitutional directive principles of state policy that speak to access to health services are particularly relevant, as effective access to safe abortion ultimately depends on the availability of health services. It can be noted that, while the Ugandan Constitution does not include a right to health among the provisions that are clearly intended to be justiciable, in the chapter on national objectives and directive principles of state policy, the state is obliged to ensure that all Ugandans enjoy rights and opportunities pertaining to access to health services.Footnote ⁷³ Furthermore, the state is enjoined to take all practical measures to ensure the provision of basic medical services to the population of Uganda.Footnote ⁷⁴ Indeed, the Constitution requires the legislature to adopt legislation to give “full” effect to directive principles.Footnote ⁷⁵ Therefore, even in the face of judicial reluctance to treat directive principles as justiciable,Footnote ⁷⁶ directive principles cannot be dismissed as inconsequential constitutional artefacts. At the very least, they serve to provide a context within which justiciable rights under the Constitution, including the right to life, can be meaningfully understood. In this sense, directive principles support, as well as clarify, the normative content of a fundamental right to access to safe abortion that derives from justiciable rights.

While nevertheless valuable, comparative law has its limits even if it succeeds in mustering persuasive authority. Abortion law and practice are shaped by more than formal constitutional rules. While constitutional frameworks formally open the gateway to legal abortion, they do not reveal the informal rules and practices that serve as veritable barriers against what is constitutionally guaranteed.Footnote ⁷⁷ The constitutional frameworks of the United States, Germany, Colombia and South Africa that permit abortion do not tell us whether, in practice, women in these jurisdictions enjoy access to abortion services. In the United States, for example, women experience barriers occasioned by state “pushbacks”, such as mandatory waiting periods and counselling.Footnote ⁷⁸ They also encounter a health care system that is highly privatized and largely expects women, including poor women, to pay for abortion services.Footnote ⁷⁹Roe, itself, has been at the receiving end of a conservative and religious backlash which has seen the US Supreme Court claw back on the trimester approach, replacing it with an “undue burden” standard, thereby legitimizing state “pushbacks”.Footnote ⁸⁰ To avoid merely securing token rights, abortion advocacy should go beyond merely reciting potentially persuasive precedents. Ultimately, the human rights spotlight should be on implementing abortion laws that emphasize access to permitted practices.

Penal Code and common law

The provisions of Uganda's Penal Code with the most direct application to abortion are sections 141–43, which, respectively, proscribe “unlawfully” attempting to procure an abortion, procuring an abortion, and supplying substances for the procurement of an abortion, and section 224 which provides for therapeutic abortion. Section 141 states: “[a]ny person who, with intent to procure the miscarriage of a woman whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means, commits a felony and is liable to imprisonment for fourteen years.”

Section 141 does not punish the woman herself but any person who attempts to procure an abortion whether or not the woman is pregnant. Sections 142 and 143 are drafted in similar language save for the person who is the object of punishment. Section 142 punishes the woman herself for procuring an abortion, while section 143 punishes the person who supplies what is used (such as drugs or equipment) to procure an abortion. Section 224, on the other hand, provides a defence to a charge of unlawfully procuring an abortion. It says: “[a] person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his or her benefit, or upon an unborn child for the preservation of the mother's life, if the performance of the operation is reasonable, having regard to the patient's state at the time, and to all the circumstances of the case.”

These sections have been retained from the law Uganda inherited from Britain and the provisions have a history in colonial jurisprudence.Footnote ⁸¹ The colonial origins of the abortion provisions of the Penal Code lie in the English Offences Against the Person Act of 1861 and received common law as developed by English courts, principally in the case of R v Bourne (Bourne).Footnote ⁸² The provisions of the Ugandan Penal Code on abortion are also shared by other African jurisdictions that have retained colonial abortion law, such as Malawi, Nigeria, Somalia, Sudan, South Sudan and Tanzania.

Historically, African abortion laws have mirrored the laws of the colonizing countries. Whether the law was inherited from the codified laws of Belgium, France, Italy, Spain or Portugal, or from the common or statutory law of England as with Uganda, a common feature of colonial abortion laws is that they all criminalized abortion. Saving the life of the pregnant woman was expressly or implicitly the only recognized exception. By proscribing abortion that is “unlawfully” procured, sections 141–43 of the Ugandan Penal Code replicated what was found in the English Offences Against the Person Act. Furthermore, by providing in section 224 a therapeutic defence to a charge of unlawfully procuring abortion, the Penal Code codified or at least attempted to codify the common law jurisprudence developed by English courts to underline that the word “unlawfully” in the 1861 act envisaged circumstances in which abortion was lawful and also to indicate, to a point, the scope of the therapeutic defence.

On the eve of Uganda's independence in 1962, abortion law stood as it had been during the colonial era, with no official guidance on how to apply the therapeutic exception, save to a limited extent in Anglophone Africa following the ruling in 1938 by an English court in Bourne. Bourne concerned a 14-year-old girl who had been raped and become pregnant. A surgeon, who performed an abortion upon request and with the consent of the girl's parents, had been charged with unlawfully procuring an abortion under the Offences Against the Person Act of 1861. Justice Macnaughten, the trial judge, directed the jury to the effect that performing an abortion to preserve not only the pregnant woman's life, but also her physical or mental health, was within the contemplations of lawful abortion under the 1861 act.

Bourne judicially broadened the compass of the therapeutic exception beyond an immediate threat to the pregnant woman's life, also to cover a threat to her physical or mental health. The ruling in Bourne found its way to British colonies, including colonies in Africa.Footnote ⁸³ Shortly after Bourne was decided, the West African Court of Appeal, which had appellate jurisdiction over the then Gold Coast (now Ghana), Nigeria, Sierra Leone and Gambia, unanimously followed it as the law on abortion.Footnote ⁸⁴ In 1959, the East African Court of Appeal, which had appellate jurisdiction over Kenya, Uganda and the then Tanganyika, followed suit in Bansel.Footnote ⁸⁵ However, the guiding effect of Bourne was limited; the efficacy of the ruling was undermined by the fact that, even in the jurisdictions in which it was formally received by colonial courts, such as the regional jurisdictions of West Africa and East Africa, colonial states, including Uganda, took no practical steps to implement it.

Thus, the provisions of the Penal Code, and in particular the exceptions to the criminalization of abortion, have remained unimplemented. Furthermore, even on their own terms, the provisions of the Penal Code have become quite dated. At the time that section 242 of the Penal Code, which provides a therapeutic defence, was adopted, the medical understanding was that abortion could only be procured surgically. Medical abortion, which is widely used today in early pregnancy, was unknown. In any event, the Penal Code or common law must be compatible with the Constitution. However, the adoption of guidelines on safe abortion by the Ugandan Ministry of Health in April of 2015,Footnote ⁸⁶ discussed in the next section, promises to be a positive step towards clarifying abortion laws.

Emerging jurisprudence from UN treaty-monitoring bodies and the European Court

The jurisprudence emanating from UN treaty-monitoring bodies and the European Court mandates that, where abortion is permitted under domestic law, even if in a very restrictive form, the state has a corresponding duty to ensure that any rights that are conferred on women are tangibly amenable to effective realisation. This duty can be described as a duty of transparency or a procedural duty.Footnote ⁸⁷ Its immediate juridical purpose is not so much to require the state to amend its substantive law but, instead, to institute procedures and an administrative infrastructure for implementing the law that are clearer and more accessible to the intended beneficiaries and other users.

UN treaty-monitoring bodies have developed and applied abortion rights-related procedural duties in three cases: KL v Peru (KL),Footnote ⁸⁸LC v Peru (LC)Footnote ⁸⁹ and LMR v Argentina (LMR).Footnote ⁹⁰KL and LMR were decided by the Human Rights Committee, while LC was decided by the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) under respective optional protocols. The Human Rights Committee and CEDAW Committee are the treaty-monitoring bodies of the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)Footnote ⁹¹ respectively, which have been so widely ratified by African states, including Uganda, as to justify taking cognisance of these decisions as potentially persuasive and standard-setting.Footnote ⁹²

In KL, the Human Rights Committee found Peru in violation of its obligations under the ICCPR. A 17-year-old girl who was pregnant with a foetus affected with anencephaly had been denied an abortion by hospital authorities. This was regardless of medical and social evidence confirming that continuing with the pregnancy would seriously harm KL's health. More to the point, the request for an abortion otherwise met the eligibility grounds under article 119 of the Peruvian Criminal Code, which permitted abortion if it was the only way of saving the life of the pregnant woman or avoiding serious and permanent damage to her health. The committee found Peru to have violated article 2 (the right to an effective remedy), article 7 (the right to be free from inhuman and degrading treatment), article 17 (the right to privacy) and article 24 (the right to special protection as a minor) of the ICCPR. The committee highlighted that, although Peruvian law permitted abortion, there was no domestic administrative structure, short of constitutional litigation, to allow the complainant to realise her right.

LC was the CEDAW Committee's first decision on abortion under CEDAW's optional protocol.Footnote ⁹³ A 13-year-old girl had become pregnant following sexual abuse. On discovering that she was pregnant, she had attempted suicide by jumping from a building, causing her to suffer severe injuries. Although she required emergency surgery, hospital authorities did not render treatment because they took the view that treatment would harm the foetus. When she requested an abortion, she was refused despite being eligible under the Peruvian Criminal Code. Finding the state in violation, the committee observed that the complainant had been left without access to an effective procedure to establish her entitlement. It noted that, because of the absence of laws and regulations for implementing the permitted exceptions under the Peruvian Penal Code, access to abortion was determined arbitrarily, with each hospital authority determining its own legal grounds and procedures.Footnote ⁹⁴ The committee highlighted that article 12 of CEDAW requires states to “respect, protect and fulfil” women's right to healthcare including in its legislation, executive action and policy.Footnote ⁹⁵ It recommended that Peru establish a procedure to enable women seeking abortion to realize their entitlements in a timely way under Peruvian law, including conducting education and training in the healthcare sector to sensitize healthcare professionals to respond positively to the reproductive health needs of women, and adopting guidelines or protocols to ensure the availability and accessibility of healthcare services, including abortion services.Footnote ⁹⁶

In LMR, a 19-year-old girl with an intellectual disability and medically certified as having a mental age of about ten years, had become pregnant following a rape. Through her mother, she requested an abortion. She was refused, despite falling within the exceptions permitted by article 86(2) of the Argentinean Criminal Code. Instead, she was required to obtain permission from the courts. The Human Rights Committee found Argentina to be in violation of article 2(3) (the right to an effective remedy) taken together with articles 3 (the right to equal enjoyment of rights), 7 (the right to be free from inhuman and degrading treatment) and 17 (the right to privacy). It noted that, despite meeting the criteria for legal abortion, the complainant had to appear before three courts, which had the effect of prolonging by several weeks the gestation period.Footnote ⁹⁷ The delay occasioned by the requirement to obtain judicial authorization became the reason why the hospital ultimately declined to perform the abortion and the complainant had to resort to a clandestine procedure.Footnote ⁹⁸ According to the committee, these facts highlighted that Argentina did not have the administrative framework to provide an effective remedy for women seeking abortion under domestic law.

The jurisprudence of the European Court is yet another important resource when conceiving legal reform and litigation strategies at the national and regional African levels.Footnote ⁹⁹ In its decisions in Tysiac v Poland (Tysiac),Footnote ¹⁰⁰A, B and C v Ireland,Footnote ¹⁰¹RR v Poland Footnote ¹⁰² and P and S v Poland,Footnote ¹⁰³ the European Court has enunciated that, where national authorities rely on criminal regulation of abortion but permit certain exceptions, they must take positive administrative steps to ensure that the circumstances in which abortion is permitted are articulated in a way that is reasonably clear, not just to women seeking abortion services, but also to healthcare professionals. Furthermore, they must establish an accessible and timely administrative procedure for allowing women who are aggrieved by a decision refusing them abortion to contest the decision. In Tysiac, the European Court said that, once the legislature decides to allow abortion, it must not structure its legal framework in a way that would impede access to abortion.Footnote ¹⁰⁴ It underscored that the principles of legality and the rule of law in a democracy require measures impacting on fundamental rights to be subject to an administrative review procedure before an independent body.Footnote ¹⁰⁵

Uganda's reservations on article 14 of the Maputo Protocol

Uganda ratified the Maputo Protocol in 2010 but placed reservations on article 14. In respect of article 14(2)(c), it said that “unless permitted by domestic legislation expressly providing for abortion” it is not bound by this clause, which the Ugandan state interprets as “conferring an individual right to abortion or mandating a State Party to provide access thereto”.Footnote ¹⁰⁶ Article 14(2)(c) recognizes a threat to the pregnant woman's life, health (including physical and mental), rape, incest and threat to the life of the foetus as grounds for abortion. Three arguments can be advanced to support the proposition that the reservations placed by Uganda on article 14 are of little effect in immunizing Ugandan abortion laws from the grounds permitted by article 14 or from other pertinent human rights standards.

First, the reservations did not serve to restrict grounds for abortion that are already conceded in domestic law, including the provisions of the Penal Code and reception of the ruling in Bourne into Ugandan common law.Footnote ¹⁰⁷ Indeed, Uganda expressly indicated that it was not placing reservations on what was “permitted by domestic legislation”, which should be taken to mean provisions of the Penal Code at the time. By implication, therefore, Uganda also retained Bourne. The judicially expansive notion of saving the life of the pregnant woman as a ground for abortion, which was applied in Bourne, includes preservation of the pregnant woman's physical or mental health. It approximates the grounds for abortion provided under article 14 of the protocol that permits abortion, inter alia, where there is a threat to the pregnant woman's life and health. It can also apply to the grounds of rape, incest or even a threat to the life of the foetus. Psychological distress arising from coerced or forced sexual acts and diagnosis of severe foetal impairment should be understood as relevant when assessing the effects of pregnancy on the woman's health.Footnote ¹⁰⁸ In short, the expansive interpretation in Bourne is sufficiently broad to encompass the grounds permitted by article 14. Uganda need not have placed the reservations unless it intended to introduce more restrictive law.

The second argument is that Uganda's reservations apply only to article 14 of the Maputo Protocol. They cannot be taken as also applying to its other provisions. The protocol contains several other provisions that also impact on state obligations to respect, protect and fulfil a woman's reproductive health and can be relied upon to support a woman's decision to have an abortion in conditions of safety. Leaving aside article 14, provisions of the protocol that are amenable to providing support for a right to abortion include: article 2 which guarantees equality and non-discrimination; article 3 which guarantees a right to human dignity; and article 4 which guarantees the right to life, integrity and security of person.Footnote ¹⁰⁹

The third argument, which has similarities with the second, is that Uganda's reservations cannot serve to preclude the application of provisions of other treaties that it has ratified without reservations. Of particular relevance in this regard are the International Covenant on Economic, Social and Cultural rights,Footnote ¹¹⁰ CEDAW and the African Charter. The expansive interpretation of the right to health by treaty-monitoring bodies, especially the Committee on Economic, Social and Cultural Rights (ESCR Committee), the CEDAW Committee and the African Commission provide Ugandan national authorities with resources of normative human rights standards from which to draw, especially when addressing issues of access to safe abortion. The ESCR Committee's General Comment No 14 can be used as a yardstick for ensuring that any legislation and, perforce, policy or programme intended to implement the exceptions to the prohibition in article 22(2) of the Constitution meets the requirement of holistic accessibility. Similarly, the CEDAW Committee's General Recommendation 24 is an invaluable source of guidance, not least because of its responsiveness to women's health needs, including reproductive health needs, in ways that speak to substantive equality and are cognisant of intersectionalities, including rural status, age, disability and economic means, so that “sex” is not the only equality consideration.Footnote ¹¹¹ In Purohit v The Gambia, the African Commission interpreted the right to health in article 16 of the African Charter expansively, to accord it the status of a foundational value and right on which the enjoyment of the other rights guaranteed by the African Charter depends.Footnote ¹¹²

The import of the second and third arguments is that it would also be appropriate to draw interpretive guidance from the African Commission's General Comment No 2, notwithstanding Uganda's reservations on article 14 of the Maputo Protocol. The utility of General Comment No 2 is in making available to Uganda regionally-grown soft law that consolidates international best practice in respect of the state obligation to respect, protect, promote and fulfil rights guaranteed under a treaty, and it specifically addresses abortion. When framing the normative duties for sexual and reproductive health as human rights, General Comment No 2 employs the standard of the “availability, accessibility, acceptability and good quality” of requisite health services as developed by the ESCR Committee in its General Comment No 14.Footnote ¹¹³ As Uganda already sits with abortion laws that have not been effectively implemented, the obligations to promote and fulfil fundamental rights are particularly instructive for national authorities. In the specific context of abortion, more than just adopting laws, it is incumbent upon the state, for example, to take steps to eliminate stigmatization and discrimination related to abortion services, sensitize and educate communities about the legality of abortion and the availability of safe abortion services, train health care professionals in the provision of accessible services, and allocate sufficient available resources.Footnote ¹¹⁴

Normative foundations of procedural dutiesFootnote ¹¹⁵

The jurisprudence on procedural duties emerging from UN treaty-monitoring bodies and the European Court can be understood to serve multiple purposes that apply no less to Uganda. Some purposes appeal to procedural or administrative justice and others to more substantive principles of justice as a gesture towards substantive equality.Footnote ¹¹⁶ Some purposes are more general, aimed at securing the equal and effective exercise of rights in general and the provision of remedies in the event of breach.Footnote ¹¹⁷ Some justifications serve public health in ways that are synergic with the right to health.Footnote ¹¹⁸

At a general level, procedural duties that require clarification of abortion laws and their operationalization can be understood to be implementing administrative or procedural justice. Drawing from the empirical work of psychologists, Brems and Lavrysen have highlighted that, as a human right, administrative justice has a value independent from the immediate need to achieve a particular outcome for the aggrieved person.Footnote ¹¹⁹ This is particularly so where the issues involved crucially impact on the rights-holder's perceptions about whether justice is being served.Footnote ¹²⁰ Abortion would be a case in point. Abortion law and practice have historically denied women's agency. Even in the aftermath of reform, abortion may still be opposed in ways that deliberately undermine women's human rights, even by healthcare professionals who have the administrative duty to decide impartially whether a woman seeking an abortion is eligible. Procedural justice allows women to have a sense of substantive participation in a decision that affects their lives in crucial ways.Footnote ¹²¹

If implemented in a way that assures women that decision-makers are neutral rather than arbitrary or biased arbiters, procedural duties can serve to legitimize healthcare systems.Footnote ¹²² They are conducive to building trust in healthcare systems and preventing women from being alienated even if, in the end, the law itself is perceived to be substantively unfair, such as when it is highly restrictive of abortion. Requiring the state to take into account the views of women seeking abortion, to have regard to time being of essence for women seeking access to safe abortion and to provide a right of administrative appeal, serves to enhance democratic participation in healthcare decision-making. Requirements that the state clarifies the rights and duties attendant to legal abortion and institutes administrative justice guarantees are one way of tangibly specifying the content of a fair system of social co-operation amongst equal citizens.

Against this backdrop, article 42 of the Ugandan Constitution can be used as an important constitutional structure for recognizing the legal standing of abortion-rights holders and their entitlement to procedural justice. It provides: “[a]ny person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her”. Allied to this right is the state's duty to provide women with an opportunity to correct a decision that is incorrect or unfair. Abortion advocacy in the African region rarely associates the right to administrative justice with abortion. It serves well to underscore how article 42 can intersect with abortion rights. By implication, article 42 reinforces the state's duty to implement abortion law effectively through, among other mechanisms, ensuring that, litigation aside, there are accessible and timely administrative procedures for rendering the state accountable to women who are denied abortion.

Procedural justice is not limited to rights pertinent to abortion, as it obtains for all rights in general. It appeals to a conception of justice that seeks to require the state to fulfil the rights and discharge its duties so that citizens who rely on the rights are treated equally. In this sense, procedural justice serves the value of and right to equality under the law. In a plural democracy, as Rawls argued, equality under the law reflects a shared consensus about ensuring fairness between citizens who are free and equal.Footnote ¹²³ From a Rawlsian perspective, the right to effective and accessible administrative justice is an adjunct to securing equality. The guarantee of the right to just and fair treatment in an administrative decision under article 42 of the Constitution is an adjunct to reinforcing equality before and under the law. It gives a practical edge to how citizens, including women aggrieved by the decisions of hospital administrators, can hold the state and its organs accountable. Procedural duties ensure that all rights-holders are treated in the same way. In this sense, they reinforce the realisation of the right to equality under the law that is guaranteed by article 21(1) of the Constitution.

In serving to achieve equality under the law, procedural duties are necessarily adjuncts to antidiscrimination approaches. The antidiscrimination clause in the Constitution lists “sex” as one of the protected groups.Footnote ¹²⁴ Taking equality seriously means taking steps to protect the equality rights of a vulnerable social group by countering discriminatory and obstructive barriers that are unconstitutional or superfluous and have the effect of delaying or ultimately thwarting the exercise of legal rights, thus perpetuating the status quo. The historical criminalization of abortion and its moral stigmatization render women seeking abortion not just a marginalized political minority but also a vulnerable one. Laws that are disproportionately inaccessible to women constitute indirect discrimination. Women seeking abortion are vulnerable to being denied access to lawful services even after domestic liberalization of the law.

More than just serve to realise procedural equality, it is also possible to see procedural duties as adjuncts to a substantive equality in a gendered polity. Requiring the state to implement abortion law in ways that render the legal rights of women accessible substantively affirms women as women: as a social group with reproductive health needs that have been historically marginalized and stigmatized. In this sense, it is possible to build synergy between article 42 on administrative justice and article 33 of the Constitution that specifically requires women to be accorded “full and equal dignity with men” taking into account the constitutional need to redress laws, cultures or traditions that undermine the status of women. By taking into account the peculiar information and procedural needs of women who wish to exercise abortion rights, the substantive equality of women is advanced through giving them recognition as women and according them “capabilities” to overcome some of the socioeconomic disadvantages that serve as barriers to accessing safe, legal abortion.Footnote ¹²⁵ In LC v Peru,Footnote ¹²⁶ the CEDAW Committee advanced this rationale to a point, by requiring the state to provide requisite legal, administrative and health information to women seeking safe abortion.

In environments where there is a high burden of unsafe abortion, associated with abortions that are performed outside the formal health sector by unskilled providers, as in the African region, procedural duties also serve a public health rationale. Where national authorities concede that abortion is lawful, but refrain from clarifying the circumstances in which abortion is permitted so as to allay uncertainties amongst women seeking abortion or providers of abortions services, they may be assisting in providing incentives for unsafe abortion. Equally, refraining from establishing administrative gateways to lawful abortion services is also an incentive for unsafe abortion, especially for poor women. Implementing abortion law through practices that are responsive to procedural justice can assist health systems to develop reproductive health services that are user-friendly and engender the co-operation of women rather than their alienation from the formal healthcare sector. In this way, procedural duties are adjuncts to the right to health.

If taken seriously, procedural justice can serve an overarching purpose of mitigating abortion-related stigma and its deleterious effects. Cook has highlighted that abortion-related stigma and the criminalization of abortion reinforce each other in ways that are harmful to women, not just quantitatively but also qualitatively.Footnote ¹²⁷ When the exceptions to criminalization are not meaningfully implemented, abortion-related stigma is accentuated in all its manifestations. Failure to implement perpetuates the de facto criminalization of the permitted exceptions. It creates a conducive climate for gender-based prejudice towards women seeking safe abortions, including by health care professionals with the constitutional duty to provide abortion services.Footnote ¹²⁸ When exceptions to criminalization are not implemented, women seeking abortion services experience discrimination, subordination and blemish. The ground is also rendered fertile for the misapplication of abortion rules and practices by opponents of abortion within as well as outside the health care system, causing women to remain not just socially, but also legally, subordinated and tainted.Footnote ¹²⁹ The cases decided by UN treaty-monitoring bodies and the European Court that were discussed earlier are illustrative. Remedially, procedural justice serves as a juridical tool for not only requiring health care systems to be receptive to the provision of abortion, but also unapologetically recognizing women seeking abortion as untainted rights-holders.

Operationalizing implementation

Appropriating to Uganda the procedural duties developed by UN treaty-monitoring bodies and the European Court as persuasive juridical values and principles for rendering abortion laws effective does not necessarily require domestic legal reform. As argued earlier, the provisions of the Uganda Constitution are, by implication, already receptive to the imperative of the effective realisation of fundamental rights. However, given the outdated nature of the Ugandan Penal Code and the manifest failure to operationalize Bourne, it would naive to assume that merely reminding the state of its constitutional and human rights obligations will suffice. This section identifies four main areas in which to expend implementation efforts.

One area of focus is legislation. It would achieve little to call for implementation when the substance of abortion law itself remains relatively unclear to the main stakeholders, including women and health care professionals. It seems warranted, therefore, for Uganda to adopt a legislative instrument that, as a clarification measure, aligns legislation with constitutional and international human rights obligations. This is not because legislation is a panacea. Rather, it is because abortion is a contested area. As Bergallo has highlighted, in societies where there is weak enforcement of formal rules, “incompleteness” of rules creates an environment that is conducive to opponents of abortion exploiting the void by instituting “informal rules” to subvert what is lawfully permitted.Footnote ¹³⁰

A second area of focus is the adoption of standards and guidelines responsive to the procedural and administrative justice needs of women seeking abortion. When there is unequal distribution of knowledge about the legality of abortion, the law has a chilling effect. Ample opportunities are created for unconstitutional opposition to abortion, including by healthcare professionals who are opposed to abortion. Women from the lower socio-economic strata who do not know what is legally permitted or do not have the means to access services in the private sector are the main casualties of the lacuna in implementation. Health care professionals who are competent to provide services are deterred by the fear of criminalization. Standards and guidelines that clarify abortion law using plain and accessible language can serve to demystify abortion law and remove the incentives for exploitation in areas where knowledge or access to accurate information is unequally distributed. In its technical and policy guidance on unsafe abortion, the WHO observes that barriers to safe abortion include laws or practices that prohibit access to information on legal abortion services, fail to provide public information on the legal status of abortion or adopt a restrictive interpretation of legal grounds.Footnote ¹³¹

Uganda has taken a significant step towards clarifying domestic abortion law through the medium of non-statutory guidelines. In April 2015, the Ugandan Ministry of Health adopted standards and guidelines on unsafe abortion: “Reducing morbidity and mortality from unsafe abortion: Standards and guidelines”.Footnote ¹³² These standards and guidelines are a step forward in a number of respects. They are not the sole effort of the Ugandan Ministry of Health; the Ministry of Justice and Constitutional Affairs was also involved.Footnote ¹³³ It is apt to confer on the guidelines broader legitimacy among organs of state and additional official imprimatur. The Ministry of Justice and Constitutional Affairs is the organ associated with domestic law-making. Equally significant for engendering wider purchase and co-operation is that the guidelines were formulated with the participation of the Association of Obstetricians and Gynaecologists, non-governmental organizations and civil society.Footnote ¹³⁴

The standards and guidelines improve on guidelines published by the Ugandan Ministry of Health in 2012,Footnote ¹³⁵ correcting patent official misconceptions about the exceptions to criminalization of abortion. The 2012 guidelines had interpreted the exceptions unduly restrictively, recognizing only severe medical conditions of a physical nature as permitted grounds for abortion, as well as implicitly ruling out abortion for psychosocial reasons.Footnote ¹³⁶ The new guidelines acknowledge that abortion is lawful to preserve the life and more significantly the “health” of the pregnant woman.Footnote ¹³⁷ Furthermore, they align with the guidance provided by the WHO in understanding health holistically to include psychosocial health.Footnote ¹³⁸ By the same token, they align with the holistic definition of reproductive health adopted at the International Conference on Population and Development and the Fourth World Conference on Women.Footnote ¹³⁹ The standard for measuring service provision under the new guidelines is “availability, accessibility, acceptability and appropriate quality”.Footnote ¹⁴⁰ It clearly bears the imprint of international best practice.

To a point, the new guidelines also complement the regional consensus on unsafe abortion as contained in the Maputo Plan of Action.Footnote ¹⁴¹ As with the Maputo Plan of Action, the guidelines highlight the importance of raising awareness about the availability of safe abortion and training health care professionals to ensure the availability of services.Footnote ¹⁴² What is missing, however, in the new guidelines is comprehensive practical guidance for health care providers. There is a need, for example, to streamline the guidelines to show providers precisely how to perform uterine evacuation with vacuum extraction and with medication. In this regard, Uganda can draw lessons from the comprehensive guidelines developed in Ethiopia and Ghana, which more readily translate into protocols for providing abortion services.Footnote ¹⁴³ Another significant gap in the Ugandan guidelines is that they are not time-bound. They are not, for example, tethered to a national plan of action for conducting national training to ensure that health providers are appropriately trained and ready to provide services. They risk becoming an abstract statement of intent.

A third area of focus is state accountability. As experience in other jurisdictions shows, mere proceduralization is manifestly insufficient.Footnote ¹⁴⁴ Merely adopting standards and guidelines does not ensure that the guidelines will be implemented or will not be resisted. There must be an accessible and expeditious administrative infrastructure for realising legal entitlements. Significantly, the European Court has said that it does not consider litigation, including constitutional litigation, as a primary or regular route for women seeking to challenge decisions denying them abortion.Footnote ¹⁴⁵ This is because such litigation is burdensome to women, not least poor women. Litigation is fraught with complexity and delays that militate against time being of the essence for women seeking to terminate pregnancies.Footnote ¹⁴⁶ The Ugandan standards and guidelines provide no explanation as to how women seeking abortion will readily have recourse to remedial options if and when they are denied abortion.

Especially in environments where women are largely poor and lacking in knowledge about their legal entitlements or fearful about exercising their legal rights, it is essential to facilitate accountability through regular monitoring, so that evidence is regularly gathered by stakeholders, including civil society, to determine whether the state is fulfilling abortion rights. The health care sector mirrors society in its propensity to violate women's reproductive rights through systemically embedded laws, policies, practices and values that draw from harmful stereotypes.Footnote ¹⁴⁷ Where there is evidence of systemic violations of human rights in the health care system, including the systemic perpetuation of stereotypes harmful to women seeking abortion that serve to deny abortions, it should not be left to individual women to complain. Recourse must be had to public interest litigation. Public interest litigation can be strategic in publicizing human rights violations and securing redress in ways that address how the health care system, as a key sector in fulfilling abortion rights, can serve women better.

A fourth area of focus is the lifting of reservations on article 14. Though not directly connected with implementation, lifting the reservations would nonetheless be hugely symbolic in sending a key political message to stakeholders that the state recognizes access to safe abortion as a human right and is committed to fulfilling its obligations. It is incumbent upon civil society to advocate for the lifting of the reservations.