PRB

Policy Change for Safe Abortion in Sub-Saharan Africa

Women in sub-Saharan Africa face the greatest risk globally for an unintended pregnancy to result in an unsafe abortion. In 2019, 92% of women of reproductive age in Africa lived in one of 43 countries where access to abortion was restricted or penalized.¹ The legal status of abortion in a country is directly connected to its maternal mortality and morbidity rates.² Evidence has shown that restricting access to abortion does not reduce the number of abortions; it only makes abortion less safe and more likely to lead to preventable complications, including maternal death.³ Conversely, expanding access to safe, legal abortion—a common medical procedure that carries very little risk when performed by a trained provider in an appropriate environment—is associated with improved maternal health outcomes.⁴ For example, soon after Chad, Ethiopia, and Nigeria amended their abortion laws to permit safe abortion under more circumstances, they experienced notable declines in their maternal mortality rates.⁵

Policy change to expand access to legal abortion in sub-Saharan Africa is possible through various avenues. Some countries have modified existing national laws or passed new laws to introduce access to safe abortion, including reforming colonial-era penal codes. As of October 2021, ten sub-Saharan African countries had passed reproductive health laws specifying grounds for abortion care, including expansions to abortion rights in the Gambia passed in 2010 under the Women’s Act.⁶ Other countries, such as Kenya and Somalia, have chosen to institute constitutional reform. Yet other countries, such as Ghana, have widened guidance for interpretation of existing laws.⁷ However, one of the most important and powerful avenues to expanding legal access to abortion in Africa has been through adherence to the 2003 African Union treaty, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, known as the Maputo Protocol.⁸ Legal change through the Maputo Protocol not only enshrines the international treaty within a country’s constitution but also introduces an extensive array of legal changes aimed at empowering women.

The Maputo Protocol, through its Article 14, is the sole judicial instrument regarding the right of women and girls in Africa to access safe abortion. Article 14 guarantees “the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.”⁹ While most sub-Saharan African countries have ratified the Maputo Protocol, only seven countries* have pursued legal reform to harmonize their laws to incorporate the Protocol’s criteria for access to safe abortion.¹⁰

The Democratic Republic of the Congo’s Landmark Policy Change

In 2018, the Democratic Republic of the Congo (DRC) published the Maputo Protocol in its official gazette, rendering the text superior to national laws.¹¹ This action, alongside other steps such as publishing a circular guaranteeing access to abortion care under the Protocol’s indications and the Ministry of Public Health’s 2020 endorsement of standards and guidelines for implementing the Protocol’s directives, marks the DRC as the first country in Francophone Africa to have implemented sweeping changes to broaden access to abortion care. Given that the DRC’s population is the largest in central Africa at 92.5 million people and the third-largest in sub-Saharan Africa, these legal changes have important implications for a large percentage of the subregion.¹²

Under the SAFE ENGAGE project—a four-year initiative supporting safe abortion access in Africa by providing decisionmakers with the latest data on abortion, strengthening capacity of civil society advocates, and improving evidence-based media reporting on abortion-related topics— PRB and the African Population and Health Research Center (APHRC) have jointly developed a suite of resources to document the DRC’s process of domesticating the Maputo Protocol. These resources include a case study, completed worksheets for advocates and researchers from the SAFE ENGAGE Policy Communication Guide, and this commentary. Together, these resources document the DRC’s policy change process to identify the key elements contributing to this success, and analyze the lessons learned and applicable best practices for other contexts across the African continent.

With policy advocacy efforts expended over more than 10 years, and in the face of considerable challenges and opposition from religious leaders and other cultural gatekeepers, local actors in the DRC succeeded in advancing a significant policy change to improve women’s and girls’ rights and access to health care. The course of this policy advocacy can serve as an example for other actors across the region facing similar challenges and wishing to achieve the same goal. In addition, the DRC’s policy process is a recent case—not yet documented in detail—for use in learning around policy change. It is a valuable example given the scarcity of documented case studies of policy change processes from Central Africa or Francophone Africa on sexual and reproductive health and rights.

Francophone Africa: Challenges and Opportunities for Abortion Access

Countries in Francophone West and Central Africa generally have more restrictive abortion laws than other countries on the continent.¹³ In Francophone Africa, most countries have highly restrictive or moderately restrictive laws. The DRC and Chad allow abortion in the case of rape, incest, fetal malformation, and to save a woman’s life and preserve her health, with explicit mention of mental health.¹⁴ In October 2021, Benin became the most recent country in Francophone Africa to expand access to abortion care, amending its 2003 reproductive health law to authorize abortion in cases when the continuation of the pregnancy would cause material, educational, professional, or moral distress to the woman, adding to existing authorizations for rape, incest, and preserving the health of the woman or fetus.¹⁵ To date, no Francophone African countries allow abortion without restriction. However, all countries of the region, excepting Niger, Chad, and the Central African Republic, have ratified the Maputo Protocol.¹⁶ In this context, the DRC’s steps to integrate the Maputo Protocol into their legal framework, and the expansive interpretation of the law outlined in the 2020 Standards and Guidelines for Women-Centered Abortion Care in the DRC, represent a powerful example for Francophone Africa in utilizing policy change for women’s health and well-being.¹⁷

Advocates pushing for legal access to abortion in Francophone West and Central Africa face additional hurdles to those faced by other countries on the continent. There is a greater lack of data on the incidence of abortion and its consequences across the Francophone region, which contributes to a general lack of evidence use in policymaking. The region has received less foreign donor investment than other regions to support civil society, promote evidence-based policy, and advance international norms on gender equity, reproductive health, and human rights.¹⁸ Partially due to these factors, Francophone West and Central Africa has some of the world’s highest maternal mortality rates and lowest contraceptive prevalence rates, in addition to the world’s highest fertility rates.¹⁹

However, there are early, positive signs of growing mobilization and investment to advance access to women’s sexual and reproductive health and rights in Francophone Africa, both at the regional and national levels. At the regional level, key actors are working to strengthen networks and put in place a robust and sustainable framework to advance an enabling environment for safe abortion care, inspired by the successes of the Ouagadougou Partnership model for family planning. Major international partners have been increasingly active for the last five years following a strategic analysis of safe abortion in Francophone West Africa.²⁰ In December 2019, a regional Safe Abortion Dialogue was held in Cotonou, Benin, bringing together major donors, international organizations, and regional and national networks to set a regional agenda for expanding abortion care in Francophone Africa. In 2021, the momentum generated from the Safe Abortion Dialogue and the work of involved partners led to the launch of the Centre ODAS (Organisation pour le Dialogue pour l’Avortement Sécurisé), based out of Ipas’s regional Francophone Africa headquarters in Abidjan, Côte d’Ivoire, to catalyze a growing movement across Francophone Africa, expanding the West African countries of the Ouagadougou Partnership to include the DRC, Cameroon, and Madagascar.²¹ Major funders, both governmental and philanthropic, are making larger commitments to support sexual and reproductive health and recognize the unique needs of the Francophone Africa region.

At the national level, several countries are undertaking reviews of their legal frameworks and guidance around abortion care. Some countries with some restricted access to safe abortion, such as Côte d’Ivoire and Burkina Faso, have active civil society coalitions working to expand awareness and implementation of the Maputo Protocol provisions. As cited above, Benin’s Parliament voted in favor of a new law with expansive provisions for legal abortion in October 2021.²² This new law is a promising precedent that exceeds even the indications of the Maputo Protocol for expanding access to women’s sexual and reproductive health and rights on the continent.

The DRC’s Policy Change Process: Lessons Learned

Policy change for access to safe abortion in the DRC did not happen overnight. Policy actors faced setbacks over more than 10 years of advocacy to legalize access to abortion and set in place guidance to ensure women can safely access services. Emerging from decades of conflict and desirous of re-engaging with the international community, the DRC has been making commitments to indicate its embrace of international norms and meet its development goals. Many of the challenges faced in the DRC may be common across other contexts in the region, and there are key lessons that can be drawn from the way they were addressed in the DRC.

1. Stronger Together: Cohesion of the Policy Community

A major element of success for the DRC’s policy change process came in the consolidation of the policy community under several prominent national and regional coalitions, especially the Kinshasa-based Coalition de lutte contre les grossesses non désirées (CGND) and Coalition Article 14 in Eastern DRC. Founded in 2016 with the support of an array of international organizations, the CGND brought together the major civil society actors who had been working separately using different approaches to advance access to safe abortion or address related topics in sexual and reproductive health and rights. In organizing the civil society movement and strengthening their shared agenda, along with the investment of financial and technical support from organizations working regionally or internationally, the creation of the CGND and Coalition Article 14 was a major milestone for policy change in the DRC. These coalitions worked to identify a cohesive policy objective, and then develop a workplan and targeted messaging to respond to opposition and to reach targeted policy audiences.

2. Clarifying the Issue: Credible Indicators and Legal Analyses

The CGND and their international partners enhanced and strengthened their messaging to policy decisionmakers as studies and analyses, concerning both the context of abortion care and the legal landscape in the DRC, brought to light the issue of safe abortion care. While the DRC’s elevated maternal mortality rate was underlined in the 2009 and 2014 Demographic and Health Surveys, the contribution of unsafe abortion to maternal mortality and its prevalence in the DRC were less clear. Thanks to a number of studies, including 2017 studies by the Guttmacher Institute and the University of Kinshasa and by the Ministry of Public Health supported by Ipas, advocates and government stakeholders not only gained a picture of the extent of abortion in the DRC (including within the public health system itself, where it was shown to be practiced in nearly a quarter of health facilities) but also of the contribution of unsafe, unregulated abortion care to maternal deaths.²³

In addition to academic studies, legal analyses commissioned by Pathfinder International and Ipas helped abortion advocates to understand the mechanisms available to advance legal change for safe abortion in the DRC. Several analyses by legal scholars identified publication of the Maputo Protocol in the official gazette as the surest means of bringing the Maputo Protocol into force of law, necessitating only the support of the handful of officials associated with publishing in the official gazette, instead of the 251 parliamentarians required for national legal change. This shift in strategy away from harmonization of national laws (including the penal code, the reproductive health law, and the code of medical ethics) was a turning point in the DRC’s policy change process. Other countries with monist constitutions, in which international treaties take precedence over national law, may consider following this route instead of the often more onerous path of individually reforming each existing law.

3. Ensuring Sustainability: Government Ownership and Visibility

In the DRC, the CGND, Coalition Article 14, and international partners were intentional in identifying and building champions among the very decisionmakers whose support was needed to realize access to safe abortion in the DRC, specifically, within the Constitutional Court, the Ministry of Public Health, and the Ministry of Gender, the Family, and Children. Using the values clarification and attitude transformation (VCAT) methodology for exploring attitudes around abortion, coalition members cultivated strong support from key stakeholders who were able to ensure momentum to advance the Maputo Protocol’s publication in the official gazette, and sustain this momentum through the publication of the standards and guidelines for safe abortion care. This engagement built a multisectoral coalition in government and sustained political will, invigorated through high-level focusing events such as annual celebrations of International Safe Abortion Day on September 28. By building champions across several arms of government, safe abortion advocates also ensured that the movement for safe abortion access would be self-sustaining and self-policing, with the Constitutional Court issuing guidance to the Ministry of Public Health to fulfill its constitutional duties in developing standards and guidelines for safe abortion care.

4. Legal Change Is Not the End: Making Abortion Access a Reality

One of the most important lessons in the DRC example is that legal change, in and of itself, does not improve access to abortion for women and girls. Many other barriers must be eliminated through women-centered approaches across the health care system, legal system, and within communities to ensure quality, acceptable, equitable care. Capitalizing on the momentum and political will generated by the policy change process is key to establishing the necessary guidance and frameworks for ensuring sustainable abortion care and integrating it into the existing health infrastructure. In the DRC, advocates labored for 10 years after ratification of the Maputo Protocol, but were able to capitalize on the heightened visibility of the topic to publish standards and guidelines to comprehensive abortion care within two years of the Protocol’s publication in the official gazette.

The Standards and Guidelines for Women-Centered Comprehensive Abortion Care in the DRC, validated by the Ministry of Public Health’s ethics committee in December 2020, represent a milestone in expanding access to care among countries in Africa with legal access to abortion. The DRC’s standards and guidelines codify a progressive and expansive interpretation of the Maputo Protocol, circumventing many of the procedural barriers to care that exist in other countries’ guidelines, even in places where abortion is widely legal, such as Zambia. Women seeking abortion care in the DRC do not need to provide proof of rape or incest, nor do they need to provide marital consent. Minors seeking abortion care are automatically eligible to receive care under the legal age of consent, and, while they must be accompanied by an adult, this can be any trusted adult of their choosing. The guidelines for women seeking abortion care under health grounds, including mental health, follow the World Health Organization’s definition of health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity,” and determinations are based on the abortion care provider’s determination of the potential negative effects of the unintended pregnancy on the woman’s current or future well-being.²⁴ The standards and guidelines adopted in the DRC provide an important template for other countries in Francophone West and Central Africa in interpreting the Maputo Protocol in its widest sense and establishing clear norms for the practice of abortion care.

Conclusion

Advocates and researchers across Francophone West and Central Africa can benefit from the precedent set by the DRC in widely expanding access to abortion care for its population. Documentation and analysis of this process allow us to examine the elements that created a window of opportunity for political momentum around abortion access in DRC. The case study, worksheets, and commentary, in addition to the various policy communication and evidence translation tools developed under the SAFE ENGAGE project, can serve as resources for policy advocates in Francophone Africa and beyond who wish to achieve similar advances in their legal framework. Importantly, the DRC case elucidates how a motivated, coordinated, and informed coalition of local actors was able to effect sweeping policy change in one of the continent’s largest countries, opening the door for similar advances across the Francophone region and the African continent.

*Chad, the Democratic Republic of the Congo, Eswatini, Eritrea, Mauritius, Mozambique, and Rwanda. Two countries, São Tome and Principe and Benin (as of October 2021), have gone beyond the Maputo Protocol’s indications.

Photo: lpas DRC

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