By Emmanuel Mwamba
“What does the law say?” I questioned while still standing.
I am usually known to be calm, always wearing a cheerful smile and speaking in a measured voice, whatever the tensions, threat, puzzle or circumstances.
But this matter got me totally unsettled.
I had just summoned the Provincial Medical Officer (PMO) to my office.
I used to take time to review departmental reports and wished to understand the state of the Province at each given time.
We were in the process of partitioning and setting boundaries for Muchinga Province and its districts out of Northern Province.
I stumbled upon the alarming matter.
A non-government organisation, had performed a total of 430 abortions in Nakonde, Kasama, Mpika, and Mbala in a single month.
“Sir,” the PMO calmly explained but sharing my concerns; “medical abortions are regulated by the law- ‘The Termination of Pregnancy Act of 1972’.”
“Conditions under which medical personnel can perform an abortion are set out”. She continued
“An abortion can only be performed after a certificate has been signed by two medical doctors” she laid the cold legal basis.
“Has this Organisation followed the procedures? Is it working within the sanctity of the law? Have doctors in these areas signed for this?” I quickly enquired.
As a Christian, I was outraged by the scale of the abortions and by what appeared to be careless harm to life.
But as an Administrator, I needed to know what the law provided, and whether the Organisation followed or flouted it.
I didn’t want to take a high moral ground on a matter that I feared maybe be supported by the law.
“Sir as you are aware, we have an acute shortage of medical doctors. But let us assume that they have hired their own doctors, the abortions needed to be conducted at medical facilities and meeting the conditions as provided by the law”.
The abortions were being conducted in community gatherings where the organisation was providing other attendant reproductive health services to young girls… under tents.
After our meeting, I made several calls of consultations.
After gathering adequate facts, I made a decision.
I immediately issued a letter of instruction banning the activities of the organisation in Muchinga and Northern Provinces until a formal report had been submitted to my Office and to the Ministry of Health.
We circulated a media statement that quickly received wide coverage.
Later in evening, the British Broadcasting Corporation – BBC carried the news item.
I realised I had just been caught in the crossfire of a silent war.
Within an hour of the BBC airing of the news item, I received a call from the Vice President.
“Mwamba who are you to do this? Are you the Permanent Secretary of Health?”.. Clearly he was angry.
“Are you the Minister of Health? Do you think a big organisation such as this one can operate in the country without authority?”. He demanded.
I had since learnt more facts. The NGO was a big gun in their area of specialty.
It is an international non-governmental organisation from providing contraception and safe abortion services in 37 countries around the World.
Back to the call.
The flurry and anger in the tone of questions made it difficult for me to respond.
But when I got a moment, I found myself answering.
“Your Honour Sir, what the organisation is doing is outside the law”. But before I could finish my statement, he issued fresh instructions.
“Be at my office at 08hrs tomorrow”. he cut the line.
Now Kasama is 900kms away from Lusaka and it takes about 7hrs-9hrs depending on the weather, season, time and state of certain sections of the Great North Road.
So I immediately prepared to leave as it meant that we would have to travel almost the whole night if I were to make it to the meeting at 08hrs the following day.
The termination of pregnancy Act of 1972
On my way to Lusaka, I used the opportunity to read about the law that would prove to be my lifeline.
The law was put together in 1972 following a fiery national debate.
This is when a private medical practitioner was charged with manslaughter following the death of a girl from a prominent Lusaka Family, who died after a botched abortion.
In the State v Bwanausi, Dr. Bwanausi was charged with manslaughter.
Abortion, by virtue of the Penal Code (Section 151) criminalizes the procurement of an abortion.
The Minister of Health therefore presented the Bill to provide for and regulate abortions.
“Mr Speaker, Sir, the purpose of this Bill is to amend and clarify the law relating to the termination of a pregnancy by registered medical practitioners.”
“The Bill provides for a stricter control of termination of pregnancy as it requires two registered medical doctors and a specialist in the branch of medicine in which the patient is specifically required to be examined before a conclusion is reached that the abortion should be recommended” (Zambian Parliamentary Library, Parliamentary Debates 1. August 1972).
The Bill received some opposition during the debate, but it finally passed by a majority votes of 66 against 13 votes.
Although the Bill allowed strict conditions to perform or procure abortions, the Church strongly opposed it.
After the Bill was approved in parliament and before President Kenneth Kaunda gave his assent, turning it into law, the Catholic Church in Zambia protested against the Bill in a letter addressed to the Secretary to the Cabinet (Letter from Secretary General of the Zambian Episcopal Conference to Secretary to the Cabinet, 12.8.1972, Zambia’s National Archives, Robinson Nabolyato’s collection HM/79/PP/1/72/5).
But the Speaker defended the action
“For somebody to think that it is a new law for terminating pregnancies on a wholesale basis is most irresponsible” he responded.
Government also assured that the Act would; “not open the flood-gates for termination of pregnancies upon demand.”
The Act provided for the following conditions under which an abortion could be done;
(a) that the continuance of the pregnancy would involve-
(i) risk to the life of the pregnant woman; or
(ii) risk of injury to the physical or mental health of the pregnant woman; or
(iii) risk of injury to the physical or mental health of any existing children of the pregnant woman;
greater than if the pregnancy were terminated; or
(b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk as is mentioned in paragraph (a) of subsection (1), account may be taken of the pregnant woman’s actual or reasonably foreseeable environment or of her age.
(3) Except as provided by subsection (4), any treatment for the termination of pregnancy must be carried out in a hospital.
(Termination of Pregnancy Act, Cap 304https://zambialii.org/zm/legislation/consolidated_act/304)
Remember, the Zambian Constitution also protects the right to life as a fundamental right in the Bill of Rights Article 12(2).
It protects the right to life and the only exception to this are the legal execution under the Law.
The right to life is a fundamental right and is placed in the Bill of Rights which is a protected and entrenched section of the Constitution requiring a national Referendum to amend or repeal.
Our meeting at the Veep
I arrived early at the Vice President’s Office where I was joined by a group of officials from the NGO and its embassy in Zambia.
The Minister of Health and his technical team also joined us.
Shortly the Vice President arrived and motioned to the Minister and other officials to go in – except for me.
That was the longest hour I have had to wait and endure.
After what appeared to be a long, long wait, an officer came in to call me.
I was ushered in the office.
“Why did you do this?” the Vice President asked.
I felt a decision had already been made but I needed to justify my action.
“Sir this Organisation was operating outside the law. It has flouted the Termination of Pregnancy Act of 1972. Besides the one procuring the abortion, the law requires that two medical doctors issue the Certificate and that such an act be done at a medical facility “.
“Okey,” he responded.
“You will be at the press conference which the Minister of Health will hold shortly. We have upheld your decision to suspend activities of the Organisation….but only as it relates to abortions only. The organisation will however be allowed to do cervical cancer screening, reproductive health education and the provision of other related services.” He said.
He ended the meeting.
At the Press Conference, the Minister of Health was very emphatic that by conducting abortions, the NGO had flouted the Memorandum of Understanding (MOU) between the Ministry of Health and the organization, and had also breached the law. He called for an investigation and report.
This was some victory for me. But largely, victory for the law.
The days that followed saw strong public support especially from the Church for the action we had taken.
The matter of abortions remains heavily contested and is a subject of intense but silent lobby from both sides
The Catholic Bishops have continued to lead the Zambian church against any form of abortions especially abortions based on demand, while local and international NGOs in this area, have raised a strong lobby for access to abortions so that girls and women should have access to procurement of safe abortions.
The NGO was later allowed to operate but within the provisions of the law. It supports reproductive health and abortion clinics and clinics for teenagers under which “safe abortions” are done.
To save lives of those that could be victims of unsafe abortions, the Ministry of Health has introduced the ‘Post Abortion Care Initiative’ in hospitals and other medical facilities.
At stake, under discussion and subject to various interpretations is; The Termination of Pregnancy Act of 1972, the only legal framework regulating abortions.
The majority of Zambians however remain extremely conservative about abortions.
In 2016, the proposed amendments to the Bill of Rights that failed in a Referendum, included an opportunity to define when life begins. The draft stated that life “begins at conception” which if passed, could have literally outlawed or made abortions to procure extremely difficult.
In 2016, there were only 1,514 employed medical doctors in the country.
This placed Zambia among the 25 African Countries with less than 1 doctor per 10,000 people.
Recognizing this crisis, Government has since opened Copperbelt University Medical School and is about to open Levy Mwanawasa Medical School in Lusaka joining the University of Zambia Ridgeway Campus in the training of medical doctors.
These concerted effort are designed to attend to the shortage of medical doctors available especially in rural areas.